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EXHIBIT 10.8
AGREEMENT AND PLAN OF STOCK PURCHASE
BY AND AMONG
COMPASS KNOWLEDGE HOLDINGS, INC.
AS "CKHI",
COMPASS ACQUISITION CORP.
AS THE "ACQUISITION CORP",
XXXXX X. XXXXXXXX, XXXXX XXXXXXXX, XXXXX XXXXXXXX,
XXXX XXXXXXXX, XXXX XXXXXXXX, XXXXXXXXX XXXXXXXX, XXXXX X. XXXXXXXX AS
CUSTODIAN FOR XXXXXXX XXXXXXXX UNDER THE OHIO TRANSFERS TO
MINORS ACT AND XXXXXXX XXXXXXXXXX COLLECTIVELY THE "STOCKHOLDERS",
AND
XXXXXX, INC.
AS "XXXXXX" OR "COMPANY"
DATED: August 15, 2000
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TABLE OF CONTENTS
ARTICLE I............................................................................1
DEFINITIONS..........................................................................1
1.1 Defined Terms...........................................................1
ARTICLE 2............................................................................7
THE PURCHASE OF THE STOCKHOLDER SHARES...............................................7
2.1 Purchase and Sale of Shares.............................................7
2.2 Acquisition Consideration...............................................7
2.3 Capital Adjustments....................................................10
2.4 Chief Executive Officer ...............................................11
2.5 Registration Rights....................................................11
2.6 Pledge Agreement.......................................................11
ARTICLE 3 ..........................................................................11
CLOSING AND EFFECTIVE TIME..........................................................11
3.1 Closing................................................................11
3.2 Deliveries at Closing..................................................11
ARTICLE 4...........................................................................12
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS AND XXXXXX.......................12
4.1 Organization; Capitalization...........................................12
4.2 Authorization..........................................................13
4.3 Consents and Approvals.................................................13
4.4 Title to Assets........................................................13
4.5 Facilities.............................................................13
4.6 Contracts; No Defaults.................................................13
4.7 No Conflict or Violation...............................................14
4.8 Xxxxxx Financial Statements............................................15
4.9 Absence of Certain Changes or Events...................................15
4.10 No Undisclosed Liabilities.............................................16
4.11 Accounts Receivable and Payable........................................17
4.12 Inventories............................................................17
4.13 Intellectual Property Rights...........................................17
4.14 Litigation.............................................................18
4.15 Labor Matters..........................................................18
4.16 Taxes..................................................................18
4.17 Severance Arrangements.................................................19
4.18 Insurance..............................................................19
4.19 Purchase Commitments...................................................20
4.20 Suppliers..............................................................20
4.21 Bank Accounts..........................................................20
4.22 Employee Benefit Plans.................................................20
4.23 No Brokers.............................................................20
4.24 No Other Agreements to Sell the Assets or Capital Stock of Xxxxxx......20
4.25 Books and Records......................................................20
4.26 Material Misstatements Or Omissions....................................20
4.27 Investments............................................................20
4.28 Insider Interests......................................................20
4.29 Complaince with Laws and Orders........................................21
4.30 Securities Act of 1933.................................................21
4.31 Definition of Knowledge................................................21
ARTICLE 5...........................................................................22
REPRESENTATIONS AND WARRANTIES OF THE BUYER.........................................22
5.1 Organization of Buyer..................................................22
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5.2 Authorization..........................................................22
5.3 No Conflict or Violation...............................................22
5.4 Disclosure.............................................................22
5.5 Consents and Approvals.................................................23
5.6 No Undisclosed Liabilities.............................................23
5.7 Capitalization.........................................................23
5.8 Litigation.............................................................23
5.9 Compliance with Law; permits...........................................23
5.10 No Brokers.............................................................24
5.11 Material Misstatements or Omissions....................................24
5.12 Definition of Knowledge................................................24
ARTICLE 6...........................................................................24
COVENANTS OF THE STOCKHOLDERS, XXXXXX, AND THE BUYER................................24
6.1 Further Assurances.....................................................24
6.2 Conduct of Business....................................................25
6.3 Records................................................................26
6.4 Access of the Buyer....................................................26
6.5 Financial Statements...................................................27
6.6 Notification of Certain Matters........................................27
6.7 No Mergers, Consolidations, Sale of Stock Etc..........................27
6.8 Payment of Indebtedness by Affiliates..................................27
6.9 Approval of Stockholders...............................................27
ARTICLE 7...........................................................................28
CONDITIONS TO THE STOCKHOLDERS' OBLIGATIONS.........................................28
7.1 Representations, Warranties and Covenants..............................28
7.2 No Governmental Proceedings or Litigation..............................28
7.3 Due Diligence..........................................................28
7.4 No Injunction..........................................................28
7.5 Certificates...........................................................28
7.6 Corporate Documents....................................................28
7.7 Employment Agreement...................................................28
7.8 Escrow Agreement.......................................................28
7.9 Pledge Agreement.......................................................28
7.10 Registration Rights Agreement..........................................28
7.11 Initial Consideration..................................................28
7.12 Closing Deliveries.....................................................29
7.13 Mutual General Release.................................................29
ARTICLE 8...........................................................................29
CONDITIONS TO THE BUYER'S OBLIGATION................................................29
8.1 Representations, Warranties and Covenants..............................29
8.2 No Governmental Proceedings or Litigation..............................29
8.3 Due Diligence and Audit................................................29
8.4 No Injunction..........................................................29
8.5 Certificates...........................................................29
8.6 Liens..................................................................29
8.7 401(k) Plan............................................................29
8.8 Resignation of Officers and Directors..................................29
8.9 General Release........................................................29
8.10 Escrow Agreement.......................................................30
8.11 Employment Agreement...................................................30
8.12 Closing Deliveries.....................................................30
ARTICLE 9...........................................................................30
ACTIONS BY THE STOCKHOLDERS AND THE BUYER AFTER THE CLOSING.........................30
9.1 Books and Records......................................................30
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9.2 Survival of Representations, Etc.......................................30
9.3 Indemnification........................................................30
9.4 Certain Tax Matters....................................................34
ARTICLE 10..........................................................................35
MISCELLANEOUS.......................................................................35
10.1 Termination............................................................35
10.2 Assignment.............................................................36
10.3 Notices; Transfer of Funds.............................................36
10.4 Choice of Law..........................................................36
10.5 Submission to Jurisdiction.............................................37
10.6 Entire Agreement, Amendments and Waivers...............................37
10.7 Multiple Counterparts..................................................37
10.8 Expenses...............................................................37
10.9 Invalidity.............................................................37
10.10 Titles;Gender..........................................................37
10.11 Publicity..............................................................37
10.12 Cumulative Remedies....................................................38
LIST OF EXHIBITS
Escrow Agreement Exhibit A
Earnout Illustration Exhibit B
Registration Rights Agreement Exhibit C
Pledge Agreement Exhibit D
Employment Agreements for Xx. Xxxxxxxxxx and Xx. Xxxxxxxx Exhibit E
Mutual General Releases Exhibit F
Conditional Termination Agreement Exhibit G
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AGREEMENT AND PLAN OF STOCK PURCHASE
This Agreement and Plan of Stock Purchase (the "'Agreement") is entered
this 15th day of August, 2000, by and among COMPASS KNOWLEDGE HOLDINGS, INC., a
Nevada corporation ("CKHI") and COMPASS ACQUISITION CORP., a Florida corporation
(the "Acquisition Corp"), a wholly owned subsidiary of CKHI (CKHI and the
Acquisition Corp shall sometimes be hereinafter collectively known as the
"Buyer") and XXXXX X. XXXXXXXX, XXXXX XXXXXXXX, XXXXX XXXXXXXX, XXXX XXXXXXXX,
XXXX XXXXXXXX, XXXXXXXXX XXXXXXXX, XXXXX X. XXXXXXXX AS CUSTODIAN FOR XXXXXXX
XXXXXXXX UNDER THE OHIO TRANSFERS TO MINORS ACT and XXXXXXX XXXXXXXXXX
(collectively the "Stockholders") and XXXXXX, INC., a Ohio corporation
(hereinafter "Company" or "Xxxxxx").
BACKGROUND
A. Xxxxxx is organized under the laws of the State of Ohio and has no
subsidiaries.
B. The Stockholders own 100% of all of the issued and outstanding
capital stock of Xxxxxx (the "Xxxxxx Shares").
C. The parties wish to provide for the terms and conditions upon which
Buyer will purchase all of the capital stock of Xxxxxx owned by the
Stockholders.
D. The Boards of Directors of Buyer and Xxxxxx have approved the terms
of this Agreement.
E. The Buyer, the Stockholders and Xxxxxx desire to make certain
representations, warranties, covenants, and agreements in connection with the
transactions contemplated by this Agreement.
TERMS OF AGREEMENT
In consideration of the mutual covenants and promises contained herein
and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
1.1 CERTAIN DEFINED TERMS. As used herein, the terms below shall have
the following meanings. Any of these terms, unless the context otherwise
requires, may be used in the singular or plural depending upon the reference.
"Acquisition Consideration" shall mean the consideration paid
to the Stockholders by the Buyer as set forth in Section 2.2 of this Agreement.
"Affiliate" shall have the meaning set forth in the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder.
"Assets" shall mean all of Jamita's, right, title and interest
in and to all properties, assets and rights of any kind, whether tangible or
intangible, real or personal, owned by Xxxxxx or in which Xxxxxx has any
interest whatsoever, including, without limitation, all of Jamita's, right,
title and interest in the following:
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(a) all accounts and notes receivable, refunds or deposits and
prepaid expenses (including, without limitation, any prepaid insurance
premiums);
(b) all Contract Rights;
(c) all Leases;
(d) all Leasehold Estates;
(e) all Leasehold Improvements;
(f) all Fixtures and Equipment;
(g) all Inventory;
(h) all Books and Records;
(i) all Intellectual Property Rights;
(j) all Claims which Xxxxxx may have or hereafter acquire
against any Person;
(k) all Insurance Policies;
(l) all Permits;
(m) all computers and software and software licenses; and
(n) all available supplies, sales literature, promotional
literature, customer, supplier and distributor lists, art work, display units,
telephone and fax numbers and purchasing records of Xxxxxx; and guaranties made
by suppliers in connection with the Assets or services furnished to Xxxxxx.
"Benefit Arrangement" shall mean any employment, consulting,
severance or other similar contract, arrangement or policy and each plan,
arrangement (written or oral), program, agreement or commitment providing for
insurance coverage (including any self-insured arrangements), workers'
compensation, disability benefits, supplemental unemployment benefits, vacation
benefits, retirement benefits, life, health, disability or accident benefits
(including, without limitation, any "voluntary employees' beneficiary
association" as defined in Section 501(c)(9) of the Code providing for the same
or other benefits) or for deferred compensation, profit-sharing bonuses, stock
options, stock appreciation rights, stock purchases or other forms of incentive
compensation or post-retirement insurance, compensation or benefits that (i) is
not a Welfare Plan, Pension Plan or Multiemployer Plan, (ii) is entered into,
maintained, contributed to or required to be contributed to, as the case may be,
by Xxxxxx, or an ERISA Affiliate or under which Xxxxxx, or any ERISA Affiliate
may incur any liability, and (iii) covers any employee or former employee of
Xxxxxx or any ERISA Affiliate (with respect to their relationship with such
entities).
"Books and Records" shall mean all books, records, lists,
ledgers, files, reports, plans, drawings and operating records of any kind
pertaining to Xxxxxx, including, without limitation, all corporate and tax books
and records of Xxxxxx.
"Buyer Material Adverse Effect" shall mean a Material Adverse
Effect on the financial condition, business, earnings, results of operations,
assets, liabilities or operations of the Buyer, taken as a whole resulting from
other than a general deterioration in the economy or events or conditions not
particular to Buyer.
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"CKHI Financial Statements" shall mean (i) CKHI's consolidated
audited balance sheet dated December 31, 1999 and the related statements of
income, shareholders' equity, and cash flows for such year then ended.
"CKHI Stock" shall mean shares of CKHI's common stock, par
value $.001 per share.
"Claims" shall mean all claims, causes of action, choses in
action, rights of recovery and rights of set-off of whatever kind or description
against any Person arising out of or relating to the Assets or relating to
Xxxxxx, or its business.
"Closing Balance Sheet" shall mean the unaudited balance sheet
of Xxxxxx, dated the Effective Date.
"Code" shall mean the Internal Revenue Code of 1986, as
amended, and the Treasury Regulations.
"Company Material Adverse Effect" shall mean a Material
Adverse Effect on the financial condition, business, earnings, results of
operations, Assets, liabilities or operations of Xxxxxx resulting from other
than a general deterioration in the economy or events or conditions not
particular to Xxxxxx.
"Contract" shall mean any of the agreements, contracts,
Leases, notes, loans, evidence of indebtedness, purchase orders, letters of
credit, franchise agreements, undertakings, covenants not to compete, employment
agreements, licenses, instruments, obligations, commitments, policies, purchase
and sales orders, quotations and other executory commitments to which Xxxxxx is
a party or to which any of the Assets is subject, whether oral or written,
express or implied.
"Contract Rights" shall mean all of the rights and obligations
under each Contract with respect to Xxxxxx.
"Disclosure Schedules" shall mean the schedules executed and
delivered by Xxxxxx and the Stockholders to the Buyer which set forth any
exceptions to the representations and warranties contained in Article 4 hereof
and certain other information called for by Article 4 hereof and other
provisions of this Agreement. Unless otherwise specified, each reference in
Article 4 to any numbered section is a reference to that numbered section which
is included in the Disclosure Schedules. The Disclosure Schedules will be
attached collectively to this Agreement and shall become a material part hereof.
"Employee Plans" shall mean all Xxxxxx Benefit Arrangements,
Multiemployer Plans, Pension Plans and Welfare Plans.
"Encumbrance" shall mean any claim, lien, pledge, option,
charge, easement, security interest, deed of trust, mortgage, right-of-way,
encroachment, building or use restriction, conditional sales agreement,
encumbrance or other rights of third parties, whether voluntarily incurred or
arising by operation of law, and includes, without limitation, any agreement to
give any of the foregoing in the future and any contingent sale or other title
retention agreement or lease in the nature thereof.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
"ERISA Affiliate" shall mean any entity which is (or at any
relevant time was) a member of a "controlled group of corporations" with or
under "common control" with Xxxxxx as defined in Section 414(b) or (c) of the
Code.
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"Escrow Agent" shall have the meaning set forth in the Escrow
Agreement.
"Escrowed Payment" shall mean the Escrowed Stock.
"Escrowed Stock" shall mean the CKHI Stock which shall be
deposited at Closing with the Escrow Agent in accordance with Section 2.2.1(b)
of this Agreement.
"Excluded Assets" shall mean those assets set forth on
Disclosure Schedule 1.1.1.
"Facilities" shall mean all plants, offices, manufacturing
facilities, stores, warehouses, improvements, administration buildings, and all
real property and related facilities owned or leased by Xxxxxx.
"Fair Market Value" shall mean $2.00 per share.
"Fixtures and Equipment" shall mean all of the furniture,
fixtures, furnishings, machinery and equipment, spare parts, supplies, Vehicles
and other tangible personal property owned by Xxxxxx and located in, at or upon
the Facilities as of the Closing Balance Sheet Date plus all additions,
replacements or deletions since the Closing Balance Sheet Date.
"Formula Periods" shall mean the two (2) twelve (12) month
periods commencing on the Effective Date. The first Formula Period shall mean
the first twelve (12) month period commencing on the Effective Date and ending
on the last day of the twelfth month thereafter. The second Formula Period shall
mean the second twelve (12) month period commencing on the first anniversary
date of the Effective Date and ending on the last day of the twelfth month
thereafter.
"Formula Revenues" shall mean the aggregate Formula Revenues
From Base Business and Formula Revenues Derived From Additional Business.
"Formula Revenues From Base Business" shall mean the Net
Collections as determined by CKHI's independent certified public accountants for
annual Formula Periods, where possible, and as calculated by CKHI for quarterly
Formula Periods of Xxxxxx derived from clients and customers who have a business
or contractual relationship with Xxxxxx as of the Effective Date. Such clients
and customers are identified in Disclosure Schedule 1.1.2
"Formula Revenues Derived From Additional Business" shall mean
the Net Collections as determined by CKHI's independent certified public
accountants for annual Formula Periods, where possible, and as calculated by
CKHI for quarterly Formula Periods of Xxxxxx derived from the sale of products
and/or services to clients and customers who do not have a business or
contractual relationship with Xxxxxx as of the Effective Date, except in the
case of any sale of products and/or services to school districts within the
States of Delaware and Wyoming which are not under contract with Xxxxxx as of
the Effective Date, the revenues from which shall be Formula Revenues Derived
From Additional Business.
"401(k) Plan" shall mean the 401(k) Profit Sharing Plans for
Employees of Xxxxxx.
"GAAP" shall mean generally accepted accounting principles in
the United States of America, as in effect from time to time, consistently
applied.
"Indebtedness" shall mean, at any date, without duplication,
(i) all obligations of Xxxxxx for borrowed money properly recordable as a
liability on the financial statements of Xxxxxx, (ii) all obligations properly
recordable as a liability on the financial statements of Xxxxxx, evidenced by
bonds, debentures, notes or other similar instruments, (iii) all obligations of
Xxxxxx to pay the deferred purchase
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price of property except trade accounts payable arising in the ordinary course
of business, (iv) the net present value of future minimum lease payments under
capital leases, (v) all Indebtedness (as defined in clauses (i) through (iv)
above) of others secured by a lien on any asset of Xxxxxx, whether or not such
Indebtedness is assumed by Xxxxxx, and (vii) all Indebtedness (as defined in
clauses (i) through (v) above) of others guaranteed by Xxxxxx.
"Incentive Payments" shall mean the deferred portion of the
Total Acquisition Consideration to be paid pursuant to Section 2.2.2.
"Initial Consideration" shall have the meaning set forth in
Section 2.2.1.
"Insurance Policies" shall mean the insurance policies
relating to the Assets or relating to Xxxxxx listed in Disclosure Schedule 4.18.
"Inventory" shall mean (a) all of Jamita inventories within
the Facilities or wherever otherwise located held for resale or lease to
Jamita's customers, (b) all office supplies and similar materials of Xxxxxx
located in the Facilities or wherever otherwise located, and (c) all of the raw
materials, work in process, content, curriculum, spare parts, finished products,
wrapping, supply and packaging items, employee uniforms and similar items of
Xxxxxx in the Facilities or wherever otherwise located.
"Xxxxxx Balance Sheets" shall mean the unaudited balance
sheets of Xxxxxx, together with any notes thereto, dated December 31, 1999 and
June 30, 2000.
"Xxxxxx Common Stock" shall mean the Common Stock of Xxxxxx,
no par value per share.
"Xxxxxx Financial Statements" shall mean (i) the Xxxxxx
Balance Sheets for the twelve (12) month period ending December 31, 1999 and the
six (6) month period ending June 30, 2000, and the related statements of income,
shareholders' equity, and cash flows for the twelve (12) month period ending
December 31, 1999 and the six (6) month period ending June 30, 2000,
respectively.
"Laws, Orders and/or Regulations" shall mean any laws,
statutes, ordinances, regulations, rules, notice requirements, agency guidelines
and orders of any federal, state or local government and any other governmental
department or agency, including, without limitation, education, environmental
laws, energy, motor vehicle safety, public utility, zoning, building and health
codes, occupational safety and laws respecting employment practices, employee
documentation, terms and conditions of employment and wages and hours.
"Leasehold Estates" shall mean all of the rights and
obligations of Xxxxxx as lessee under the Leases listed on a Disclosure
Schedule.
"Leasehold Improvements" shall mean all of the leasehold
improvements situated in or on the property leased under the Leases.
"Leases" shall mean all of the leases of Xxxxxx listed on a
Disclosure Schedule and all other leases relating to the Assets that are not
required to be scheduled pursuant to this Agreement.
"Material Adverse Effect" shall mean there is a reasonable
likelihood that an event, occurrence, act or omission could reasonably be
expected at the time such event, occurrence, act or omission was undertaken to
result individually, or in the aggregate, in costs, expenses, claims, judgments
and/or loss of revenues in excess of $50,000.
"Multiemployer Plan" shall mean any "multiemployer plan," as
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defined in Section 4001(a)(3) of ERISA, (1) which Xxxxxx or any ERISA Affiliate
maintains, administers, contributes to or is required to contribute to, or,
after September 25, 1980, maintained, administered, contributed to or was
required to contribute to, or under which Xxxxxx or any ERISA Affiliate may
incur any liability and (2) which covers any employee or former employee of
Xxxxxx or any ERISA Affiliate (with respect to their relationship with such
entities).
"Net Collections" shall mean total cash collections of Xxxxxx
generated from its clients and customers less refunds, discounts and credits
given to such clients and customers in accordance with Jamita's standard
operating procedures.
"Organizational Documents" shall mean (a) the articles or
certificate of incorporation and the bylaws or code of regulations of a
corporation; (b) the partnership agreement and any statement of partnership of a
general partnership; (c) the limited partnership agreement and the certificate
of limited partnership of a limited partnership; (d) the limited liability
company agreement and the certificate of formation (or similar document) of a
limited liability company; (e) any charter or similar document adopted or filed
in connection with the creation, formation, or organization of a Person; and (f)
any amendment to any of the foregoing.
"Owned Real Property" shall mean all real property owned in
fee by Xxxxxx including, without limitation, all rights, easements and
privileges appertaining or relating thereto, all buildings, fixtures and
improvements located thereon, and all Facilities thereon, if any.
"PBGC" shall mean the Pension Benefits Guaranty Corporation.
"Pension Plan" shall mean any "employee pension benefit plan"
as defined in Section 3(2) of ERISA (other than a Multiemployer Plan) (1) which
Xxxxxx or any ERISA Affiliate maintains, administers, contributes to or is
required to contribute to, or, within the five years prior to the Closing Date,
maintained, administered, contributed to or was required to contribute to, or
under which Xxxxxx or any ERISA Affiliate may incur any liability and (2) which
covers any employee or former employee of Xxxxxx or any ERISA Affiliate (with
respect to their relationship with such entities).
"Permits" shall mean all licenses, permits and other
governmental authorizations necessary to carry on the business of Xxxxxx, as
presently conducted.
"Person" shall mean any individual, corporation (including any
non-profit corporation), general or limited partnership, limited liability
company, joint venture, estate, trust, association, labor union or other entity
or governmental body.
"Representative" shall mean any officer, director, principal,
attorney, agent, employee or other representative.
"Xxxxxxxx Stockholders" shall mean Xxxxx X. Xxxxxxxx, Xxxxx
Xxxxxxxx, Xxxxx Xxxxxxxx, Xxxx Xxxxxxxx, Xxxx Xxxxxxxx, Xxxxxxxxx Xxxxxxxx and
Xxxxx X. Xxxxxxxx as Custodian for Xxxxxxx Xxxxxxxx under the Ohio Transfers to
Minors Act.
"Subsidiary" shall mean (i) any corporation in an unbroken
chain of corporations beginning with Xxxxxx if each of the corporations other
than the last corporation in the unbroken chain then owns stock possessing 50%
or more of the total combined voting power of all classes of stock in one of the
other corporations in such chain; (ii) any partnership in which Xxxxxx is a
general partner; or (iii) any partnership in which Xxxxxx possesses a 50% or
greater interest in the total capital or total income of such partnership.
"Tax" or "Taxes" means any federal, state, local or foreign
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income, gross receipts, license, capital stock, franchise, profits, payroll,
employment, withholding, social security, unemployment, disability, real
property, ad valorem/personal property, stamp, excise, occupation, sales, use,
transfer, environmental, customs duties, value added, alternative or add-on
minimum, estimated or other tax, including any interest, penalty or addition
thereto, whether disputed or not.
"Tax Returns" shall mean any return, declaration, report,
claim for refund, information return or statement or other document (including
schedules or any related or supporting information), and including any amendment
thereof, filed or required to be filed with any governmental entity or other
authority in connection with the determination, assessment or collection of any
Tax or the administration of any laws, regulations or administrative
requirements relating to any Tax.
"Total Acquisition Consideration" shall mean the sum of (i)
the Initial Consideration and (ii) the Incentive Payments.
"Treasury Regulations" shall mean the applicable regulations
promulgated under the Code.
"Vehicles" shall mean all automobiles and other vehicles owned
or leased by Xxxxxx.
"Welfare Plan" shall mean any "employee welfare benefit plan"
as defined in Section 3(l) of ERISA, (1) which Xxxxxx or any ERISA Affiliate
maintains, administers, contributes to or is required to contribute to, or under
which Xxxxxx or any ERISA Affiliate may incur any liability and (2) which covers
any employee or former employee of Xxxxxx or any ERISA Affiliate (with respect
to their relationship with such entities).
ARTICLE 2
THE PURCHASE OF THE STOCKHOLDERS SHARES
2.1 PURCHASE AND SALE OF SHARES. Subject to the terms and conditions of
this Agreement, on the Closing Date (as hereinafter defined), the Stockholders
shall sell to the Buyer and the Buyer shall purchase from the Stockholders all
of the shares of common stock they own in Xxxxxx which represents 100% of all of
the capital stock of Xxxxxx which is and will be issued and outstanding as of
the Closing Date (hereinafter the Xxxxxx stock shall be called the "Xxxxxx
Shares").
2.2 ACQUISITION CONSIDERATION. The Acquisition Consideration to be paid
to the Stockholders for the Xxxxxx Shares shall be calculated and paid as set
forth below.
2.2.1 INITIAL CONSIDERATION. The initial consideration (the
"Initial Consideration") shall consist of the following:
(a) $1,875,000, in cash (the "Initial Cash"), will be
paid to the Stockholders, at Closing.
(b) $1,125,000, in CKHI Stock, will be delivered to
the Escrow Agent, at Closing, and will be held and delivered by the Escrow Agent
in accordance with the terms and conditions of the Escrow Agreement which is
attached hereto as Exhibit "A" (hereinafter the "Escrow Agreement"). In
determining the number of shares of CKHI Stock that will be delivered to the
Escrow Agent, the amount of such payment (i.e., $1,125,000) will be divided by
the Fair Market Value of CKHI Stock. The $1,125,000 of CKHI Stock placed in
escrow will sometimes herein be called the "Escrowed Stock."
(c) Subject to the condition that Xxxxxx realizes
Formula Revenues of at least $1,027,000 (the "Revenue
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Threshold") in the first Formula Period, the Escrow Agent shall pay to the
Stockholders the Escrowed Stock. In determining the Formula Revenues, the
Formula Revenues From Base Business shall be applied first and then to the
extent necessary to reach the Revenue Threshold the Formula Revenues Derived
From Additional Business shall be applied. Any excess Formula Revenues Derived
From Additional Business shall be subject to the Incentive Payments described in
Section 2.2.2 below.
(d) In the event that Xxxxxx fails to realize Formula
Revenues at least equal to the Revenue Threshold for the first Formula Period
("Revenue Deficit"), the amount of the Escrowed Stock that will be paid to the
Stockholders will be recalculated as follows: the Escrowed Stock will be
multiplied by a number which shall be determined by: (i) taking the actual
Formula Revenues for the first Formula Period, and (ii) dividing such number by
the Revenue Threshold. For example, if the actual Formula Revenues for the first
Formula Period is $900,000 then, in such event, only $985,881 of the Escrowed
Stock will be paid to the Stockholders.
2.2.2 INCENTIVE PAYMENTS. CKHI agrees, subject to the
provisions of this Agreement, to pay to the Stockholders an additional amount
calculated by multiplying the Formula Revenues Derived From Additional Business
for the first and second Formula Periods by 17.5% (the "Formula Factor"). Such
payments shall hereinafter sometimes be referred to as the "INCENTIVE PAYMENTS".
Notwithstanding the foregoing, no Incentive Payment shall be
paid to the Stockholders as may otherwise be required pursuant to this provision
with respect to the amount of any Formula Revenues Derived From Additional
Business which are used to calculate the Escrowed Stock payment as set forth in
Section 2.2.1(c) above. For example, if in the first Formula Period there are
$527,000 of Formula Revenues From Base Business and $600,000 of Formula Revenues
Derived From Additional Business then, in such event, only $17,500 will be paid
to the Stockholders as Incentive Payments for the first Formula Year.
Furthermore, by way of example, if Xxxxxx has collected
$100,000 of Revenues Derived From Additional Business from one or more new
customers during the first Formula Period and such amounts are not used to
calculate the Escrowed Stock payment as set forth in Section 2.2.1(c) above,
then, in such event, the Xxxxxx Shareholders will be paid an Incentive payment
of $17,500. Conversely, if in the Second Formula Period the same customer(s) are
provided the same product or service up to $100,000 then no additional Incentive
Payments will be required pursuant to this provision. However, if the same
customer(s) are provided a new or additional products or services in excess of
$100,000 then, in such event, an additional Incentive Payment will be calculated
at the Formula Factor with respect to the amount of such additional product or
service and paid to the Stockholders.
No Incentive Payments will be made with respect to Formula
Revenues From Base Business regardless of whether or not such revenues are
derived from new or additional products or services.
For additional illustrations of the application of the
foregoing formulas, see Exhibit "B" attached hereto.
2.2.3 PAYMENT METHOD AND TIME. (a) The release of the Escrowed
Stock and each Incentive Payment shall be made, if required pursuant to this
Agreement, as soon as reasonably possible after the calculation for such payment
is made but in no event shall such payment be made later than 90 days after the
end of each Formula Period. Each Incentive Payment, if any, shall be made in
cash. All cash consideration to be paid by the Buyer shall be delivered by
certified bank check or wire transfer of immediately available funds to the
accounts of the Stockholders designated by the Stockholders by written notice to
the CKHI.
(b) The payment of the Initial Consideration,
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including the Escrowed Stock, and the Incentive Payments, if any, shall be paid
90% to the Xxxxxxxx Stockholders and 10% to Xxxxxxx Xxxxxxxxxx. The allocation
of such payments among each Xxxxxxxx Stockholder shall be made in accordance
with the ownership percentages set forth in Disclosure Schedule 2.2.3 attached
hereto.
2.2.4 FINANCIAL RECORDS. CKHI and the Acquisition Corp shall
make available to the Stockholders its financial records and information
necessary to verify the computation of Formula Revenues. In the event a majority
of the Stockholders send written notice to CKHI within 60 days of their receipt
of CKHI's calculation of the Formula Revenues of their objection to the
calculation of the Formula Revenues or their objection to CKHI's payment to the
Stockholders, the parties shall have thirty (30) days from the date of such
notice to agree upon the Formula Revenues and CKHI's payment to the Stockholders
for the period in dispute. In the event the parties fail to agree on such
amount, then a mutually agreeable independent public accountant shall be
appointed to resolve the dispute (the "Auditor"). The Auditor shall make a final
and binding resolution of the disagreement between the parties and based on such
resolution, shall make a final and binding determination of the Formula Revenues
and CKHI's payment to the Stockholders for the period in dispute. The Auditor
shall be instructed to use every reasonable effort to perform its dispute
resolution function within thirty (30) days of submission of the matter to it,
and in any case, as soon as is practicable after such submission. The
Stockholders and CKHI shall cooperate to provide the Auditor with such
information and documents reasonably requested by the Auditor to make its
determination. All accounting fees and other expenses (collectively, "Audit
Expenses") of the Audit shall be paid as follows: (i) by the Stockholders if the
difference between the Formula Revenues or CKHI's payment to the Stockholders in
any audit (the "Discrepancy") is less than 2 1/2% of CKHI's calculation of
Formula Revenues and/or payment, (ii) split equally between the Stockholders and
CKHI if the Discrepancy is equal to or greater than 2 1/2% but less than 5%, and
(iii) by CKHI if the Discrepancy is equal to or greater than 5%.
2.2.5 OPERATIONAL COVENANTS. Without the prior written consent
of Xxxxx X. Xxxxxxxx and Xxxxxxx Xxxxxxxxxx, which shall not be unreasonably
withheld, Buyer shall not, prior to the conclusion of the second Formula Period:
(a) reorganize Xxxxxx, whether by integrating or
consolidating the business of Xxxxxx with other operating units of Buyer or its
subsidiaries or affiliates, except in the case that at the time of such
integration or consolidation such transaction could not reasonably be expected
to have a Material Adverse Effect on the Formula Revenues;
(b) commence, without integrating or consolidating
into the business of Xxxxxx, business in CKHI or its subsidiaries or affiliates
which is competitive with the business of Xxxxxx unless such integration or
consolidation could not reasonably be expected to have at that time a Material
Adverse Effect on the Formula Revenues or unless CKHI first offers such business
or opportunity to Xxxxx X. Xxxxxxxx and Xxxxxxx Xxxxxxxxxx for integration or
consolidation into the business of Xxxxxx and Xx. Xxxxxxxx and Xx. Xxxxxxxxxx
decline (which shall include the failure to respond in writing within 30 days of
such offer) such business or opportunity;
(c) breach, or cause Xxxxxx to breach, the Employment
Agreements with Xxxxx X. Xxxxxxxx or Xxxxxxx Xxxxxxxxxx;
(d) effect any reassignment, reprioritization,
reallocation, restructuring, or reduction of Jamita's human or other resources,
their research and development initiatives, or their marketing programs, except
in a manner that at the time of such event could not reasonably be expected to
have a Material Adverse Effect on the Formula Revenues or that are reasonably
necessary in light of Jamita's results of operation;
(e) amend the articles of incorporation or bylaws of
Xxxxxx in any manner that at the time of such amendment could reasonably be
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expected to have a Material Adverse Effect on the Formula Revenues;
(f) cause Xxxxxx to become a party to or terminate
any agreement which at the time such agreement is entered into or terminated
could reasonably be expected to have a Material Adverse Effect on the Formula
Revenues or that is reasonably necessary in light of Jamita's results of
operation;
(g) cause Xxxxxx to undertake actions outside the
ordinary course of its business which at the time of such undertaking could
reasonably be expected to have a Material Adverse Effect on the Formula
Revenues;
(h) sell a material portion of Xxxxxx or its assets,
merge Xxxxxx with any other entity, sell a controlling interest in Xxxxxx, or
make any fundamental change in the business of Xxxxxx unless such action(s) at
the time of such undertaking could not reasonably be expected to have a Material
Adverse Effect on the Formula Revenues or that is reasonably necessary in light
of Jamita's results of operation;
The parties hereby acknowledge and agree that none of the
foregoing conditions shall apply if the Formula Profits of Xxxxxx in each of any
two (2) consecutive calendar quarters are less than $125,000.
In the event that Buyer defaults in its performance of any of
its obligations under this Section 2.2.5 and fails to cure such default within
thirty (30) days (or such other reasonable period if 30 days is not a sufficient
amount of time to cure such default, provided that Buyer shall have commenced in
good faith and is diligently pursuing its efforts to cure such default during
such 30-day period) of receiving a written notice of default from the
Stockholders, the Buyer shall be deemed to be in breach of this Agreement and
the Stockholders shall be entitled to receive the Escrowed Stock and pursue
relief in accordance with Section 9.3 of this Agreement.
2.3 CAPITAL ADJUSTMENTS.
A. Subject to Section 2.2.5 hereof, the existence of the right
to earn the CKHI Stock set forth herein shall not affect in any way the right or
power of CKHI to make or authorize any or all adjustments, subdivisions,
combinations, recapitalizations, reorganizations or other changes in its capital
structure or its business, or any merger or consolidation of CKHI or to issue
any securities, bonds, debentures, or preferred or prior preference stock ahead
of or affecting the common stock of CKHI, the rights thereof or to effect the
dissolution or liquidation of CKHI, or any sale or transfer of all or part of
its assets or business, or any other corporate act or proceeding, whether of a
similar character or otherwise.
B. In the event of a stock split, stock dividend,
recapitalization, or merger in which CKHI is subject to a split-up, combination,
exchange of shares or the like and which results in a change in the number or
kind of shares of common stock of CKHI which is outstanding immediately prior to
such event, the rights of the Stockholders to receive CKHI Stock in respect of
this Agreement, shall be appropriately adjusted in the same manner as the number
and kind of shares a shareholder of CKHI who owned the same number and kind of
shares immediately prior to such event. Such adjustments shall be made in good
faith by the Board of Directors of CKHI, whose determination shall be conclusive
and binding on all parties, subject to manifest error.
C. In case of any consolidation or merger of CKHI with or into
another corporation or the conveyance of all or substantially all of the assets
of CKHI to another corporation or a share exchange transaction involving more
than 50% of the issued and outstanding common stock of CKHI, the Stockholders
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right to receive CKHI Stock shall thereafter be convertible into the number of
shares of stock, options or other securities or property to which a holder of
the number of shares of common stock deliverable upon entitlement to the CKHI
Stock would have been entitled upon such consolidation, merger, conveyance,
conversion or exchange; and, in any such case, appropriate adjustment shall be
made in the application of the provisions herein set forth with respect to the
rights and interest thereafter of the Stockholders' rights to receive CKHI
Stock, to the end that the provisions set forth herein shall thereafter be
applicable, as nearly as reasonably possible, in relation to any shares of
stock, options or other property thereafter deliverable upon entitlement
thereof.
2.4 CHIEF EXECUTIVE OFFICER. Notwithstanding anything in the articles
of incorporation or bylaws to the contrary, with respect to Xxxxxx during the
Formula Periods, the chief executive officer of Xxxxxx shall be Xxxxx X.
Xxxxxxxx subject to the terms and conditions of his Employment Agreement
attached hereto as Exhibit "E".
2.5 REGISTRATION RIGHTS. At Closing, the parties shall enter into a
Registration Rights Agreement substantially in the form attached hereto as
EXHIBIT "C"
2.6 PLEDGE AGREEMENT. CKHI and the Acquisition Corp will enter into
with the Stockholders a pledge agreement in the form attached hereto as EXHIBIT
"D" (hereinafter the "PLEDGE AGREEMENT") whereby the common stock of the
Acquisition Corp. will be held in escrow to insure the payment of the Escrowed
Stock, if required pursuant to this Agreement.
ARTICLE 3
CLOSING AND EFFECTIVE TIME
3.1 CLOSING. Upon the terms and subject to the conditions set forth
herein, the closing of the transactions contemplated herein (the "Closing")
shall be held at 10:00 o'clock A.M., Eastern time, at the offices of CKHI on a
date which is mutually acceptable to the parties but not later than August 15,
2000 ("Closing Date"), unless the parties hereto otherwise agree.
Notwithstanding the Closing Date or the statutory date for effecting the subject
transaction, the parties hereby agree that the effective date of this
transaction shall be as of the close of business on July 31, 2000 (the
"Effective Time").
3.2 DELIVERIES AT CLOSING.
3.2.1 COMPANY STOCK CERTIFICATES. The Stockholders shall, on
the Closing Date, deliver to the Buyer certificates evidencing the Xxxxxx
Shares, duly endorsed in blank for transfer or accompanied by stock powers duly
executed in blank. The Xxxxxx certificates shall hereinafter be collectively
known as the "Certificates."
3.2.2 PAYMENT OF CONSIDERATION. At the Closing, upon surrender
of the Certificates duly endorsed by the Stockholders, CKHI shall pay to the
Stockholders the Initial Cash and deliver to the Escrow Agent, as set forth in
the Escrow Agreement, the Escrowed Stock.
3.2.3 PAYMENT TO NON-HOLDER. If the Acquisition Consideration
(or any portion thereof) is to be paid to a person other than the person in
whose name the Certificates surrendered in exchange therefor are registered, it
shall be a condition to the payment of the Acquisition Consideration that the
Certificates so surrendered shall be properly endorsed or accompanied by
appropriate stock powers and otherwise be in proper form for transfer, that such
transfer otherwise be proper and that the person requesting such transfer pay to
CKHI any transfer or other taxes payable by reason of the foregoing or establish
to the satisfaction of CKHI that such taxes have been paid or are not required
to be paid.
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3.2.4 LOST, STOLEN, OR DESTROYED CERTIFICATES. In the event
any Certificate shall have been lost, stolen or destroyed, upon the making of an
affidavit of that fact by the person claiming such Certificate to be lost,
stolen or destroyed and subject to such other conditions as the Board of
Directors of the CKHI may impose, CKHI shall deliver in exchange for such lost,
stolen or destroyed Certificate the Acquisition Consideration required to be
delivered in respect thereof.
3.2.5 CERTIFICATES. At the Closing, the Buyer, Xxxxxx and the
Stockholders shall deliver the Certificates and other documents and items
described in Articles 8 and 9.
3.2.6 OTHER CLOSING TRANSACTIONS. At the Closing, each of the
parties shall take such other actions required hereby to be performed by it
prior to or on the Closing Date, including, without limitation, satisfying the
conditions set forth in Articles 8 and 9.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS AND XXXXXX
The Stockholders and Xxxxxx hereby jointly and severally represent and warrant
to the Buyer that, subject to the disclosures set forth in the Disclosure
Schedules, the following representations and warranties are, as of the date
hereof, and will be, as of the Closing Date, true and correct:
4.1 ORGANIZATION; CAPITALIZATION.
4.1.1 Xxxxxx is duly organized, validly existing and in good
standing under the laws of the State of Ohio and has full corporate power and
authority to conduct its business as it is presently being conducted and to own
and lease its properties and assets. Except as set forth in Disclosure Schedule
4.1.1, Xxxxxx is duly qualified to do business as a foreign corporation and is
in good standing in each jurisdiction in which such qualification is necessary
under the applicable law as a result of the conduct of its business or the
ownership of its properties except where the failure to be so qualified and in
good standing would not have a Material Adverse Effect. Each jurisdiction in
which Xxxxxx is qualified to do business as a foreign corporation is listed in
Disclosure Schedule 4.1.1.
4.1.2 The Stockholders have delivered to the Buyer copies of
the Organizational Documents of Xxxxxx, as currently in effect.
4.1.3 The capitalization of Xxxxxx as of the date hereof and
as of the Closing (including the identity of each shareholder and the number of
shares held by each) is set forth in Disclosure Schedule 4.1.3. All of Jamita's
outstanding shares of capital stock are duly authorized, validly issued, fully
paid, and non-assessable. All securities of Xxxxxx were offered and sold in
compliance with applicable federal and state securities laws. Each Stockholder
represents that he owns and will own beneficially and of record all of the
outstanding shares of capital stock as of the date hereof or as of the Closing
Date, respectively, of Xxxxxx, as set forth opposite such Stockholder's name in
Disclosure Schedule 4.1.3, free and clear of all Encumbrances, with full right,
power and authority to transfer such shares to the Buyer. Except as set forth in
Disclosure Schedule 4.1.3, there are no outstanding subscriptions, calls,
commitments, warrants or options for the purchase of shares of any capital stock
or other securities of Xxxxxx or any securities convertible into or exchangeable
for shares of capital stock or other securities issued by Xxxxxx, or any other
commitments of any kind for the issuance of additional shares of capital stock
or other securities issued by Xxxxxx. Upon delivery to the Buyer, the capital
stock of Xxxxxx will be free and clear of all Encumbrances and shall be duly
authorized, validly issued, fully paid and non-assessable. At the Closing, the
Stockholders will transfer good and marketable title to the Xxxxxx Shares to the
Buyer.
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4.1.4 Xxxxxx has not at any time had any Subsidiaries, and
Xxxxxx neither owns nor holds the right to acquire (directly or indirectly)
shares of capital stock in any other Person.
4.2 AUTHORIZATION. Xxxxxx has all necessary corporate power and
authority and has taken all corporate action necessary to execute and deliver
this Agreement, to consummate the transactions contemplated hereby and to
perform its obligations hereunder, and no other proceedings on the part of
Xxxxxx are necessary to authorize this Agreement and the transactions
contemplated hereby. Each Stockholder individually has the requisite power and
authority and has taken all action necessary to execute and deliver this
Agreement, to consummate the transactions contemplated hereby and to perform his
or her obligations hereunder, and no other actions on the part of any
Stockholders are necessary to authorize this Agreement and the transactions
contemplated hereby. This Agreement has been duly executed and delivered by the
Stockholders and Xxxxxx and is a legal, valid and binding obligation of the
Stockholders and Xxxxxx, enforceable against each of them in accordance with its
terms, except as may be limited by (i) bankruptcy, insolvency, moratorium,
reorganization and other similar laws affecting creditors' rights generally and
(ii) the general principles of equity, regardless of whether asserted in a
proceeding in equity or at law.
4.3 CONSENTS AND APPROVALS. Other than as provided in Disclosure
Schedule 4.3, no notice to, declaration, filing or registration with, or
authorization, consent or approval of, or permit from, any domestic or foreign
governmental or regulatory body or authority, or any other person or entity, is
required to be made or obtained by the Stockholders or Xxxxxx in connection with
the execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby.
4.4 TITLE TO ASSETS. Disclosure Schedule 4.4 identifies all real and
personal property with a book value or replacement cost in excess of $5,000
owned or leased by Xxxxxx. Xxxxxx owns free and clear of any Encumbrances or, as
set forth in Disclosure Schedule 4.4, leases or has rights to use, the Assets
set forth in Disclosure Schedule 4.4, except for (i) minor liens or Encumbrances
that in the aggregate are not substantial in amount, do not materially detract
from the value of the Assets subject thereto or interfere with the present use
thereof and have not arisen other than in the ordinary course of business and
(ii) Encumbrances specifically identified in Disclosure Schedule 4.4. Except for
real and personal property individually owned by the Stockholders and identified
in Disclosure Schedule 4.4, the Assets include all assets necessary for the
conduct of the business of Xxxxxx in the ordinary course consistent with past
practice. The Assets have been maintained in accordance with normal industry
practice, are in reasonable operating condition and repair (except for ordinary
wear and tear), and are sufficient for the operation of the business of Xxxxxx
as currently conducted.
4.5 FACILITIES. Xxxxxx neither owns nor leases any Facilities.
4.6 CONTRACTS; NO DEFAULTS. Except for Contracts listed in Disclosure
Schedule 4.6, Xxxxxx is not a party to, or bound by, any Contract of any kind to
be performed after the Closing Date (i) pursuant to which it is obligated to
expend more than $10,000 in any twelve-month period and that is not subject to
cancellation on not more than 60 days' notice by Xxxxxx without penalty or
increased cost or (ii) with any Personnel or affiliates of Xxxxxx or any
Stockholders or relatives of any of the foregoing. To the knowledge of the
Stockholders and Xxxxxx, there is no default by any party to any such Contract,
which default could have a Company Material Adverse Effect. Disclosure Schedule
4.6 lists the following Contracts, agreements and other written arrangements to
which Xxxxxx is a party:
(a) any written arrangement (or group of related written
arrangements) for the lease of personal property providing for lease payments in
excess of $10,000 per annum;
(b) any written arrangement (or group of related written
arrangements) for the purchase or sale of raw materials, commodities, supplies,
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products or other property or for the furnishing or receipt of services,
including, without limitation, any customer or vendor contracts in excess of
$10,000 per annum;
(c) any written arrangement (or group of related written
arrangements) concerning a partnership or joint venture with any other Person;
(d) any written arrangement (or group of related written
arrangements) under which it has created, incurred, assumed or guaranteed (or
may create, incur, assume or guarantee) indebtedness (including capitalized
lease obligations) involving more than $10,000 in principal amount or under
which it has imposed (or may impose) a security interest or lien on any of its
assets, tangible or intangible;
(e) any written arrangement (or group of related written
arrangements) concerning confidentiality or non-competition arrangements;
(f) any written arrangement (or group of related written
arrangements) involving the Stockholders or any Affiliate of the Stockholders;
(g) any Employee Plan and any written arrangement with any of
Jamita's directors, officers, shareholders or employees in the nature of a
collective bargaining agreement, employment agreement or severance agreement;
(h) any written arrangement for any capital expenditure in
excess of $10,000;
(i) any other written arrangement (or group of related written
arrangements) either involving aggregate payments of more than $10,000 or not
entered into in the ordinary course of business consistent with past practice;
and
(j) any oral contract, agreement or other arrangement with
respect to any of the matters referred to in the foregoing clauses (a) through
(i) and any proposal (whether oral or written) to enter into any contract,
agreement or other arrangement (other than sales presentations made to customers
in the ordinary course of business) with respect to any of the matters referred
to in the foregoing clauses (a) through (i).
Xxxxxx and the Stockholders will deliver or make available to the Buyer
a correct and complete copy of each Contract listed in Disclosure Schedule 4.6.
Except as set forth in Disclosure Schedule 4.6, with respect to each Contract
listed, to the knowledge of the Stockholders and Xxxxxx, (A) the Contract is
legal, valid, binding, enforceable (except as such enforceability may be limited
by (i) bankruptcy, insolvency, moratorium, reorganization and other similar laws
affecting creditors' rights generally and (ii) the general principles of equity,
regardless of whether asserted in a proceeding in equity or at law) and in full
force and effect; (B) to the knowledge of Xxxxxx and the Stockholders, no party
is in material breach or default, and no event has occurred which with notice or
lapse of time could constitute a material breach or default or permit
termination, modification or acceleration, under the Contract; and (C) to the
knowledge of Xxxxxx and the Stockholders, no party has repudiated any material
term of the Contract, and there are no renegotiations of, attempts to
renegotiate, or outstanding rights to renegotiate any material amounts paid or
payable to Xxxxxx under current or completed Contracts with any Person, and no
such Person has made written demand for such renegotiation.
4.7 NO CONFLICT OR VIOLATION. Except as set forth in Disclosure
Schedule 4.7, neither the execution, delivery and performance of this Agreement
nor the consummation of the transactions contemplated hereby will result in (a)
a violation of or a conflict with any provision of the Organizational Documents
of Xxxxxx, (b) a breach of, or a default under, or the creation of any right of
any party to accelerate, terminate or cancel, any Contract, Permit,
authorization or concession to which Xxxxxx is a party or by which any of the
Assets are bound, which breach or default could reasonably be expected to have a
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Company Material Adverse Effect on the business or financial condition of Xxxxxx
or its ability to consummate the transaction contemplated hereby: (c) to the
knowledge of Xxxxxx and the Stockholders, a violation by Xxxxxx or any
Stockholders of any law, statute, rule, regulation, ordinance, code, order,
judgment, writ, injunction, decree or award applicable to Xxxxxx or such
Stockholders, which violation could reasonably be expected to have a Company
Material Adverse Effect on the business or financial condition of Xxxxxx or its
ability to consummate the transactions contemplated hereby; or (d) an imposition
of any material Encumbrance, restriction or charge on Xxxxxx or any of the
Assets.
4.8 XXXXXX FINANCIAL STATEMENTS. The Xxxxxx Financial Statements (a)
are in conformity with the Books and Records, (b) expect as disclosed in the
notes therein or as described in Disclosure Schedule 4.8 and except for normal
year-end accruals not contained therein, prepared in accordance with GAAP
consistently applied, and (c) except as disclosed in the notes therein or as
described in Disclosure Schedule 4.8 and except for normal year-end accruals not
contained therein, fairly and accurately present, in all material respects, the
assets, liabilities (including all reserves) and financial position of Xxxxxx as
of the respective dates thereof and the results of operations and changes in
cash flows for the periods then ended.
4.9 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as set forth in
Disclosure Schedule 4.9, since the Closing Balance Sheet Date to the knowledge
of the Stockholders and Xxxxxx, there has not been any:
(a) change in Jamita's financial condition or results of
operations, other than any such changes that have not yet had and could not
reasonably be expected to have a Company Material Adverse Effect;
(b) (i) except for normal periodic increases in the ordinary
course of business consistent with past practice, increase in the compensation
payable or to become payable by Xxxxxx to any of its officers, directors,
employees, former employees, or agents (collectively, "Personnel"), (ii) grant,
payment or accrual, contingent or otherwise, for or to the credit of any of the
Personnel with respect to any bonus, incentive compensation, service award or
other like benefit, (iii) adoption, creation or amendment of any Employee Plan,
(iv) employment agreement (written or verbal) to which Xxxxxx is a party or (v)
other change in employment terms for any of Jamita's officers, employees or
agents;
(c) sale, lease, assignment or transfer of any of the Assets,
other than to Persons that are not Affiliates for fair consideration and in the
ordinary course of business consistent with past practice and not individually
or in the aggregate material to Xxxxxx;
(d) cancellation, compromise, waiver or release of any rights
or claims (or series of related rights or claims) either (i) involving an
Affiliate of Xxxxxx or the Stockholders, (ii) involving more than $10,000, or
(iii) outside the ordinary course of business consistent with past practice;
(e) amendment, cancellation or termination of any Contract, or
Permit (i) involving an Affiliate of Xxxxxx, or (ii) involving payments in
excess of $10,000 in the aggregate, or (iii) that are otherwise material to
Xxxxxx;
(f) capital expenditure or the execution of any Lease,
Contract, or Permit (or series of related Contracts, Leases and Permits) or any
incurring of liability therefor (i) involving an Affiliate of Xxxxxx or any
Stockholders, (ii) involving payments in excess of $10,000 in the aggregate, or
(iii) outside the ordinary course of business consistent with past practice;
(g) failure to operate the business of Xxxxxx in the ordinary
course consistent with past practice and to use reasonable efforts to preserve
the business intact, to keep available to the Buyer the services of Personnel,
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and to preserve for the Buyer the goodwill of Jamita's suppliers, customers,
distributors and others having business relations with Xxxxxx;
(h) change in accounting methods or practices by Xxxxxx;
(i) mortgage, pledge or other encumbrance of any of the
Assets, except those resulting from taxes and special assessments not in default
and payable without penalty or interest;
(j) redemption, purchase, or other acquisition of any of
Jamita's equity securities, or any other transfer of the Assets to or on behalf
of any shareholder of Xxxxxx, the Stockholders or any other Affiliate of Xxxxxx,
including, but not limited to, any payment of principal of or interest on any
debt owed to any of the foregoing or the making of any loan to any of the
foregoing as an employee of Xxxxxx;
(k) issuance by Xxxxxx of, or commitment of Xxxxxx to issue,
any shares of stock or other equity securities or obligations or securities
convertible into or exchangeable for shares of stock or other equity securities;
(l) indebtedness incurred by Xxxxxx for borrowed money or any
commitment to borrow money entered into by Xxxxxx or any loans or guarantees
made or agreed to be made by Xxxxxx;
(m) liabilities incurred (other than for borrowed money)
involving $10,000 or more except in the ordinary course of business and
consistent with past practice and not individually or in the aggregate material
to Xxxxxx, or any increase or change in any assumptions underlying, or methods
of calculating, any bad debt, contingency or other reserves;
(n) acceleration, termination, modification, cancellation or
threatened termination or cancellation of any Contract to which Xxxxxx is a
party or by which Xxxxxx is bound, outside the ordinary course of business
consistent with past practice or involving more than $10,000 in the aggregate;
(o) capital investment in, any loan to, or any acquisition of
the securities or assets of any other Person (i) involving an Affiliate of
Xxxxxx or any Stockholders, (ii) involving more than $10,000 in the aggregate,
or (iii) outside the ordinary course of business consistent with past practice;
(p) grant of any license or sublicense of any rights under or
with respect to any Intellectual Property Rights; or
(q) agreement (either oral or written) by Xxxxxx or any
Personnel to do any of the foregoing; or other event or condition of any
character that in any one case or in the aggregate has a Company Material
Adverse Effect, or any event or condition (other than events or conditions
affecting the economy generally) known to Xxxxxx or any Stockholders that it is
reasonable to expect could, in any one case or in the aggregate, have a Company
Material Adverse Effect in the future.
4.10 NO UNDISCLOSED LIABILITIES. Except as set forth in Disclosure
Schedule 4.10, to the knowledge of Xxxxxx and/or any Stockholder, Xxxxxx has no
liabilities or obligations (absolute, accrued, contingent or otherwise) except
(i) liabilities that are reflected and reserved against on the Closing Balance
Sheet that have not been paid or discharged since the date thereof and (ii)
liabilities incurred by Jamita since the Closing Balance Sheet Date in the
ordinary course of business consistent with past practice and in accordance with
this Agreement (none of which relates to any breach of contract, breach of
warranty, tort, infringement or violation of law or arose out of any complaint,
action, suit or proceeding except those which individually or in the aggregate
could not have a Company Material Adverse Effect).
4.11 ACCOUNTS RECEIVABLE AND PAYABLE. To the knowledge of Xxxxxx and
the Stockholders, the accounts receivable of Xxxxxx reflected on the Closing
Balance Sheet, and all accounts receivable of Xxxxxx arising since the Closing
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Balance Sheet Date, represent bona fide claims against debtors for sales made,
services performed or other charges arising on or before the date hereof, and
all the goods delivered and services performed that gave rise to said accounts
were delivered or performed in accordance with the applicable orders, Contracts
or customer requirements. To the knowledge of Xxxxxx and the Stockholders, all
accounts receivable of Xxxxxx reflected on the Closing Balance Sheet shall be
subject to no defenses, counterclaims or rights of setoff and shall be fully
collectible in the ordinary course of business, without cost to the Acquisition
Corp., Xxxxxx or CKHI, in collection efforts therefore, except to the extent of
any reserve with respect thereto set forth on the Closing Balance Sheet
(excluding the notes thereto). The accounts payable of Xxxxxx reflected on the
Closing Balance Sheet, and all accounts payable of Xxxxxx arising since the
Closing Balance Sheet Date, represent bona fide debts of Xxxxxx for purchases
made, services contracted for or other charges arising on or before the date
thereof, and all the goods purchased and services contracted for that gave rise
to said accounts were purchased or performed in accordance with the applicable
orders, Contracts or Xxxxxx requirements.
4.12 INVENTORIES. The values at which the Inventories are shown on the
Closing Balance Sheet have been determined in accordance with the normal
valuation policy of Xxxxxx as described in the Closing Financial Statements,
consistently applied. The Inventories (and items of inventory acquired or
manufactured subsequent to the Closing Balance Sheet Date) consist only of items
of quality and quantity commercially usable and salable in the ordinary course
of business, except for any items of obsolete material or material below
standard quality, all of which have been written down to realizable market
value, or for which adequate reserves have been provided on the Closing Balance
Sheet. All inventories not written off have been priced at the lower of cost or
market on a first in, first out basis. The current quantities of all Inventories
are reasonable in the current circumstances of the business of Xxxxxx.
4.13 INTELLECTUAL PROPERTY RIGHTS.
4.13.1 Disclosure Schedule 4.13.1 (i) contains detailed
information (including where applicable the federal registration number and the
date of registration or application for registration and the name in which
registration was applied for) concerning (x) all of Jamita's registrations of
trademarks and of other marks, trade names or other trade rights, and all
pending applications for any such registrations and all of Jamita's patents and
registered copyrights and all pending applications therefor, (y) all computer
software used by Xxxxxx in the conduct of its business ("Computer Software")
indicating whether such Computer Software is owned or licensed and, if licensed,
the material terms of such license, and (z) all other trademarks and other
marks, trade names and other trade rights and all other trade secrets, designs,
plans, specifications, and other intellectual property rights of any kind of
Xxxxxx, whether or not registered, which are material to the operation of Xxxxxx
as it is currently conducted (all of the items referred to in this clause (i)
being "Intellectual Property Rights") and (ii) identifies any intellectual
property rights that any third party owns and that Xxxxxx uses in its business,
and specifies whether such use is pursuant to license, sublicense, agreement or
permission. Xxxxxx owns (or, as set forth in Disclosure Schedule 4.13.1,
possesses adequate and enforceable licenses or other rights to use) all
Intellectual Property Rights now used in its business and has taken all
necessary action to protect the Intellectual Property Rights. Except as set
forth in Disclosure Schedule 4.13.1, no Person has a right to receive a royalty
or similar payment in respect of any Intellectual Property Rights pursuant to
any contractual arrangements entered into by Xxxxxx or otherwise. Except as set
forth in Disclosure Schedule 4.13, Xxxxxx has not received notice nor have the
Stockholders any reason to believe that the use by Xxxxxx of the Intellectual
Property Rights is interfering with, infringing upon or otherwise violating the
rights of any third party in or to such Intellectual Property Rights, and no
proceedings have been instituted against or notices received by Xxxxxx alleging
that Jamita's use of any Intellectual Property Rights infringes upon or
otherwise violates any rights of a third party in or to such Intellectual
Property Rights, which infringement or violation could have a Material Adverse
Effect. The Intellectual Property Rights are all those materially necessary for
the operation of the business of Xxxxxx as it is currently conducted. No
employee of Xxxxxx has entered into any Contract that restricts or limits in any
way the scope or type of work in which the employee may be engaged or requires
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the employee to transfer, assign, or disclose information concerning his or her
work to anyone other than Xxxxxx.
4.13.2 The source codes for all Computer Software have been
placed in back-up files that are securely stored in a location other than the
Facility or Facilities where such Computer Software is used. All databases used
in the business of Xxxxxx are periodically (at least once every week) backed-up,
and such backed-up materials are moved to and securely stored at locations other
than the Facility or Facilities where such databases are used.
4.13.3 To the knowledge of Xxxxxx and the Stockholders, all
Computer Software utilized by Xxxxxx ("Computer Software") supports the use,
entry or creation of dates on or after January 1, 2000, so that when such a date
is either processed, entered into or is intended to be generated as a result of
the operation of the Computer Software, the Computer Software shall not (i) fail
or produce incorrect date results or (ii) cause any other programs to fail or to
generate errors.
4.14 LITIGATION. Except as set forth in Disclosure Schedule 4.14, there
is no charge, complaint, action, order, writ, injunction, judgment or decree
outstanding or claim, suit, litigation, proceeding, labor dispute, arbitrable
action or investigation (collectively, "Actions") pending or, to the knowledge
of Xxxxxx and the Stockholders, threatened against, relating to or affecting (i)
Xxxxxx or the Assets or the operation of the business of Xxxxxx as currently
operated, (ii) any Employee Plan or any trust or other funding instrument,
fiduciary or administrator thereof or (iii) the transactions contemplated by
this Agreement, before or by any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, any of which is reasonably expected to result in a loss not covered by
insurance in excess of $10,000 or reasonably expected to have a Company Material
Adverse Effect. To the knowledge of the Stockholders and Xxxxxx, Xxxxxx is not
in default with respect to any judgment, order, writ, injunction or decree of
any court or governmental agency, and there are no unsatisfied judgments against
Xxxxxx or the business of Xxxxxx. To the knowledge of Xxxxxx and/or the
Stockholders, there is not a reasonable likelihood of an adverse determination
of any pending Actions that could, individually or in the aggregate, reasonably
be expected to result in the payment of a judgment in excess of $10,000 or have
a Material Adverse Effect. Except as set forth in Disclosure Schedule 4.14, each
Action pending or, to the knowledge of Xxxxxx and the Stockholders, threatened
(whether or not disclosed in Disclosure Schedule 4.14), is covered by insurance,
and each such applicable Insurance Policy is described in Disclosure Schedule
4.18 and is in full force and effect, and, except as set forth in Disclosure
Schedule 4.14, Xxxxxx has not received any notice or, to the knowledge of Xxxxxx
and the Stockholders, threat of cancellation, limitation or noncoverage.
4.15 LABOR MATTERS. Xxxxxx has not had and does not have any employees.
4.16 TAXES. Xxxxxx has filed all material federal, state, local and
foreign Tax Returns that are required to be filed by it on or prior to the
Closing Date (taking into account applicable extensions), all Taxes shown as
owing by Xxxxxx on all such Tax Returns have been fully paid or properly accrued
on Jamita's financial statements other than such taxes as are being contested in
good faith, and all such Tax Returns are true and correct in all material
respects. The Tax Returns accurately reflect all liability for Taxes of Xxxxxx
for the periods covered thereby. Except as set forth in Disclosure Schedule
4.16:
(a) all material Taxes which Xxxxxx is obligated to withhold
from amounts owing to any employee, creditor or third party have been fully paid
or properly accrued;
(b) Xxxxxx is not a party to any tax sharing agreements;
(c) there are no liens for Taxes upon the assets of Xxxxxx
which are not provided for on the Closing Balance Sheet except liens for Taxes
not yet due and payable and liens for taxes that are being contested in good
faith;
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(d) there are no outstanding written requests, agreements,
consents or waivers to extend the statutory period of limitations applicable to
the assessment of any material Taxes or deficiencies against Xxxxxx;
(e) no claim has ever been made by an authority in a
jurisdiction where Xxxxxx does not file Tax Returns that it is or may be subject
to taxation by that jurisdiction;
(f) Xxxxxx does not have any liability for Taxes for (or
allocable to) any Tax year or period ending on or before the Closing Date that
has not been paid;
(g) Xxxxxx has not made, or is not (or is not a party to an
agreement under which it could be) obligated to make, any payments that will not
be deductible under Code Section 280G;
(h) Xxxxxx has disclosed on its income Tax Returns all
positions taken therein that could give rise to a substantial understatement of
income Tax;
(i) there is no dispute or claim concerning any Tax liability
of Xxxxxx that has been made or raised by any authority in writing or as to
which Xxxxxx or any Stockholder or director or officer of Xxxxxx has knowledge;
(j) Disclosure Schedule 4.16 lists all national, state, local,
and foreign income Tax Returns filed by or with respect to Xxxxxx for taxable
periods ended on or after December 31, 1998, and identifies those Tax Returns
that have been or are currently being audited;
(k) Xxxxxx has properly requested, received and retained all
necessary exemption certificates and other documentation supporting any claimed
exemption or waiver of Taxes on sales or other transactions as to which Xxxxxx
would have been obligated to collect or withhold Taxes.
4.17 SEVERANCE ARRANGEMENTS. Except as set forth in Disclosure Schedule
4.17, Xxxxxx has not entered into any severance or similar arrangement in
respect of any Personnel that will result in any obligation (absolute or
contingent) of the Buyer, Xxxxxx, or any other Person to make any payment to any
such Personnel following termination of employment.
4.18 INSURANCE. Disclosure Schedule 4.18 contains a complete and
accurate list of all policies or binders of fire, liability, title, worker's
compensation and other forms of insurance (showing as to each policy or binder
the carrier, policy number, coverage limits, expiration dates, annual premiums
and a general description of the type of coverage provided) maintained by Xxxxxx
on its business, Assets or Personnel. Except as set forth in Disclosure Schedule
4.18, to the knowledge of the Stockholders and Xxxxxx all of such policies are
sufficient for compliance with all requirements of law and of all Contracts to
which Xxxxxx is a party, except where the failure to comply could not reasonably
be expected to have a Company Material Adverse Effect. Xxxxxx is not in default
under any of such policies or binders, and Xxxxxx has not failed to give any
notice or to present any claim under any such policy or binder in a due and
timely fashion. Such policies and binders provide sufficient coverage, in the
reasonable opinion of Xxxxxx and the Stockholders, for the risks insured
against, are in full force and effect on the date hereof and shall be kept in
full force and effect by Xxxxxx through the Closing Date. Disclosure Schedule
4.18 contains a complete and accurate list of all open or unresolved claims made
pursuant to any insurance policy maintained by Jamita. As of the Closing, Xxxxxx
shall have made any and all claims that, to the knowledge of Xxxxxx and the
Stockholders, it is entitled to make in accordance with the terms of any
insurance policy maintained by Xxxxxx.
4.19 PURCHASE COMMITMENTS. As of the date of this Agreement, all
Contracts or commitments for the purchase of Inventory by Xxxxxx were made in
the ordinary course of business consistent with past practice. No outstanding
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purchase or outstanding lease commitment of Xxxxxx presently is in excess of the
normal, ordinary and usual requirements of its business.
4.20 SUPPLIERS. Disclosure Schedule 4.20 contains a complete and
accurate list of the ten largest suppliers of Xxxxxx during Jamita's last fiscal
year, showing the approximate total purchases by Xxxxxx from each such supplier
during each of the last two fiscal years. To the knowledge of Xxxxxx and the
Stockholders, since the Closing Balance Sheet Date, there has been no material
adverse change in the business relationship with any supplier named in
Disclosure Schedule 4.20 and no threat or indication that any such change is
reasonably foreseeable.
4.21 BANK ACCOUNTS. Disclosure Schedule 4.21 contains a true and
correct list of the names of each bank, savings and loan, or other financial
institution in which Xxxxxx has an account, including cash contribution
accounts, and the names of all Persons authorized to draw thereon or with access
thereto.
4.22 EMPLOYEE BENEFIT PLANS. Xxxxxx has not had and has no employees,
employee plans, Pension Plans, Multiemployer Plans, or Welfare Plans.
4.23 NO BROKERS. Xxxxxx does not and will not have any obligation to
pay any finder's fee, brokerage commission or similar payment in connection with
the transactions contemplated hereby. Any such fee payable by any Stockholders
is solely the obligation of such Stockholders.
4.24 NO OTHER AGREEMENTS TO SELL THE ASSETS OR CAPITAL STOCK OF XXXXXX.
Neither Xxxxxx nor the Stockholders has any legal obligation, absolute or
contingent, to any other Person to sell or effect a sale of the capital stock of
Xxxxxx or to effect any merger, consolidation or the reorganization of Xxxxxx or
to enter into any agreement or cause the entering into of an agreement with
respect thereto, other than as set forth herein.
4.25 BOOKS AND RECORDS. Xxxxxx has made and kept (and given the Buyer
access to) Books and Records and accounts, which, accurately and fairly reflect
the activities of Xxxxxx.
4.26 MATERIAL MISSTATEMENTS OR OMISSIONS. To the knowledge of Xxxxxx
and the Stockholders, no representations or warranties by Xxxxxx or the
Stockholders in this Agreement, nor any document, exhibit, statement,
certificate or schedule furnished or to be furnished to the Buyer pursuant
hereto, or in connection with the transactions contemplated hereby, contains or
will contain any untrue statement of a material fact, or omits or will omit to
state any material fact necessary to make the statements or facts contained
therein not misleading.
4.27 INVESTMENTS. Xxxxxx does not own or have the right to acquire,
directly or indirectly, any interest or investment (whether equity or debt) in
any corporation, partnership, joint venture, business, trust or entity, other
than (i) non-controlling investments made in the ordinary course of business and
corporate partnering, development, cooperative marketing and similar
undertakings and arrangements entered into in the ordinary course of business,
and (ii) other investments of less than $10,000 in the aggregate.
4.28 INSIDER INTERESTS. Disclosure Schedule 4.28 sets forth all
material contracts, agreements with and other obligations to officers,
directors, employees or shareholders of Xxxxxx and their affiliates. Except as
set forth in Disclosure Schedule 4.28, no officer, director or shareholder of
Xxxxxx, and no entity controlled by any such officer, director or shareholder,
and no relative or spouse who resides with any such officer, director or
shareholder (i) owns, directly or indirectly, any material interest in any
Person that is or is engaged in business, other than on an arm's-length basis,
as a competitor, lessor, lessee, customer or supplier of Xxxxxx or (ii) owns, in
whole or in part, any tangible or intangible property that Xxxxxx uses in the
conduct of its business.
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4.29 COMPLIANCE WITH LAWS AND ORDERS.
4.29.1 COMPLIANCE. Except as set forth in Disclosure Schedule
4.29.1, Xxxxxx (including each and all of its operations, practices, properties,
contracts, agreements and assets) is in compliance with all applicable Laws,
Orders and Regulations, including, without limitation, those applicable to
discrimination in employment, tax, education, insurance, brokering and referral,
advertising, occupational safety and health, trade practices, competition,
pricing and billing, zoning, building and sanitation, employment, retirement and
labor relations, product advertising and the environmental laws, except where
the failure to comply could not reasonably be expected to have a Company
Material Adverse Effect. Except as set forth in Disclosure Schedule 4.29.1,
neither Xxxxxx nor any Stockholder has received notice of any violation or
alleged violation of, and is subject to no liability for past or continuing
violation of, any Laws, Orders or Regulations which could, in any one case or in
the aggregate, reasonably be expected to have a Company or Buyer Material
Adverse Effect. All reports and returns required to be filed by Xxxxxx with any
Government Entity have been filed, and were accurate and complete when filed.
Without limiting the generality of the foregoing, the operation of Jamita's
business as it is now conducted does not, nor does any condition existing at any
of its facilities, in any manner constitute a nuisance or other tortuous
interference with the rights of any person or persons in such a manner as to
give rise to or constitute the grounds for a suit, action, claim or demand by
any such person or persons seeking compensation or damages or seeking to
restrain, enjoin or otherwise prohibit any material aspect of the conduct of
such business or materially affect the manner in which it is now conducted which
could, in any one case or in the aggregate, reasonably be expected to have a
Company or Buyer Material Adverse Effect.
Xxxxxx has made all required payments to its unemployment
compensation reserve accounts with the appropriate governmental departments of
the states where it is required to maintain such accounts, and each of such
accounts has a positive balance.
4.29.2 LICENSES AND PERMITS. To the knowledge of Xxxxxx and
the Stockholders, Xxxxxx has all licenses, permits, approvals, authorizations
and consents of all Government Entities and all certification organizations
required for the conduct of the business (as presently conducted) and operation
of its facilities, except for those Permits that could not reasonably be
expected to have a Company Material Adverse Effect if not obtained. All such
licenses, permits, approvals, authorizations and consents are described in
Disclosure Schedule 4.29.2, are in full force and effect and will not be
affected or made subject to loss, limitation or any obligation to reapply as a
result of the transactions contemplated hereby. Except as set forth in
Disclosure Schedule 4.29.2, Xxxxxx (including its business, operations,
properties and assets) is and has been in compliance with all such permits and
licenses, approvals, authorizations and consents, except for those Permits that
could not reasonably be expected to have a Company Material Adverse Effect if
not obtained.
4.30 SECURITIES ACT OF 1933. Each Stockholder is acquiring the CKHI
Stock for investment purposes, solely for his or her own account and not as a
nominee or agent for any other person and not with a view to, or for offer or
sale in connection with, any distribution thereof within the meaning of the
Securities Act of 1933, as amended (the "Act"), that would be in violation of
the securities laws of the United States of America or any state thereof,
without prejudice, however, to such Stockholder's right at all times to sell or
otherwise dispose of all or any part of the CKHI Stock pursuant to an effective
registration statement under the Act or pursuant to an exemption from the
registration requirements of the Act.
4.31 DEFINITION OF KNOWLEDGE. Wherever in this Agreement a warranty or
representation is qualified by a word or phrase referring to Jamita's or the
Stockholders knowledge, it shall mean, with respect to Xxxxxx, the actual
knowledge of Xxxxx X. Xxxxxxxx and/or Xxxxxxx Xxxxxxxxxx, and with respect to
the Stockholders, the actual knowledge of each Stockholder.
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ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer hereby represents and warrants to the Stockholders as follows:
5.1 ORGANIZATION OF BUYER. CKHI is a corporation duly organized,
validly existing and in good standing under the laws of the State of Nevada and
the Acquisition Corp is a corporation duly organized, validly existing and in
good standing under the laws of the State of Florida, with full corporate power
and authority to own, lease, and operate their properties and to carry on their
businesses as presently conducted by them. Except as set forth in Disclosure
Schedule 5.1 or the Disclosure Package (defined below), CKHI and the Acquisition
Corp are duly qualified to do business as a foreign corporation and are in good
standing in each jurisdiction in which such qualification is necessary under the
applicable law as a result of the conduct of their business or the ownership of
their properties except where the failure to be so qualified and in good
standing would not have a Buyer Material Adverse Effect. Each jurisdiction in
which CKHI and the Acquisition Corp are qualified to do business as a foreign
corporation is listed in Disclosure Schedule 5.1.
5.2 AUTHORIZATION. The Buyer has all necessary corporate power and
authority and has taken all corporate action necessary to execute and deliver
this Agreement, to consummate the transactions contemplated hereby and to
perform its obligations hereunder, and no other proceedings on the part of the
Buyer are necessary to authorize this Agreement and the transactions
contemplated hereby. This Agreement has been duly executed and delivered by the
Buyer and is a legal, valid and binding obligation of the Buyer enforceable
against them in accordance with its terms, except as may be limited by (i)
bankruptcy, insolvency, moratorium, reorganization and other similar laws
affecting creditors' rights generally and (ii) the general principles of equity,
regardless of whether asserted in a proceeding in equity or at law.
5.3 NO CONFLICT OR VIOLATION. Neither the execution, delivery and
performance of this Agreement nor the consummation of the transactions
contemplated hereby will result in (a) a violation of or a conflict with any
provision of the Certificate or Articles of Incorporation or bylaws of the
Buyer, (b) a breach of, or a default under, any term or provision of any
contract, agreement, indebtedness, lease, commitment, license, franchise,
permit, authorization or concession to which the Buyer is a party, which breach
or default could reasonably be expected to have a Buyer Material Adverse Effect
on the business or financial condition of the Buyer or its ability to consummate
the transactions contemplated hereby or (c) to the knowledge of Buyer, a
violation by the Buyer of any statute, rule, regulation, ordinance, code, order,
judgment, writ, injunction, decree or award, which violation could reasonably be
expected to have a Buyer Material Adverse Effect on the business or financial
condition of the Buyer, or its ability to consummate the transactions
contemplated hereby.
5.4 DISCLOSURE. CKHI has made available to Xxxxxx and the Stockholders
a disclosure package consisting of the following documents filed by CKHI with
the Securities and Exchange Commission: (a) Form 10SB and (b) Form 10Q/SB
(collectively referred to as the "Disclosure Package"). To the knowledge of
CKHI, the Disclosure Package does not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which such statements
were made, not misleading. To the knowledge of Buyer nothing has occurred after
the date of the documents contained in the Disclosure Package that would
individually or in the aggregate have a Buyer Material Adverse Effect.
5.5 CONSENTS AND APPROVALS. Except as set forth on Disclosure Schedule
5.5, no notice to, declaration, filing or registration with, or authorization,
consent or approval of, or permit from, any domestic or foreign governmental or
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regulatory body or authority, or any other person or entity, is required to be
made or obtained by the Buyer in connection with the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby.
5.6 NO UNDISCLOSED LIABILITIES. Except as set forth in Disclosure
Schedule 5.6 or in the Disclosure Package, to the knowledge of Buyer, Buyer has
no liabilities or obligations (absolute, accrued, contingent or otherwise)
except (i) liabilities that are reflected and reserved against on the financial
statements included in CKHI's Form 10SB that have not been paid or discharged
since the date thereof and (ii) liabilities incurred by Buyer since the date
thereof in the ordinary course of business consistent with past practice and in
accordance with this Agreement (none of which relates to any breach of contract,
breach of warranty, tort, infringement or violation of law or arose out of any
complaint, action, suit or proceeding except those which individually or in the
aggregate could reasonably be expected to result in a Buyer Material Adverse
Effect.
5.7 CAPITALIZATION. The authorized capital stock of CKHI consists of
50,000,000 shares of Common Stock, $.001 par value per share, which as of May
31, 2000, approximately 14,750,000 shares are issued and outstanding, and (ii)
5,000 shares of Preferred Stock, no par value per share, which as of May 31,
2000, 2,000 shares were issued and outstanding. All of the issued and
outstanding shares of CKHI's Stock are, and all shares of CKHI's Stock to be
issued pursuant to this Agreement will be, duly authorized, validly issued,
fully paid and non-assessable.
5.8 LITIGATION. There is no charge, complaint, action, order, writ,
injunction, judgment or decree outstanding or claim, suit, litigation,
proceeding, labor dispute, arbitrable action or investigation (collectively,
"Actions") pending or, to the knowledge of the Buyer, threatened against,
relating to or affecting (i) the Buyer or its assets or the operation of the
business of the Buyer as currently operated and as proposed to be operated, (ii)
any Employee Plan of Buyer or any trust or other funding instrument, fiduciary
or administrator thereof or (iii) the transactions contemplated by this
Agreement, before or by any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, any of which is reasonably expected to result in a loss not covered by
insurance in excess of $50,000 or reasonably expected to have a Buyer Material
Adverse Effect. To the knowledge of the Buyer, the Buyer is not in default with
respect to any judgment, order, writ, injunction or decree of any court or
governmental agency, and there are no unsatisfied judgments against the Buyer or
the business of the Buyer. To the knowledge of the Buyer, there is not a
reasonable likelihood of an adverse determination of any pending Actions that
could, individually or in the aggregate, reasonably be expected to result in the
payment of a judgment in excess of $50,000 or reasonably be expected to result
in a Buyer Material Adverse Effect. Except as set forth in Disclosure Schedule
5.8, each Action pending or, to the knowledge of the Buyer, threatened (whether
or not disclosed in Disclosure Schedule 5.8) is covered by insurance and each
such applicable insurance policy is described in Disclosure Schedule 5.8 and is
in full force and effect, and, except as set forth in Disclosure Schedule 5.8,
Buyer has not received any notice or, to the knowledge of Buyer, threat of
cancellation, limitation or noncoverage.
5.9 COMPLIANCE WITH LAW; PERMITS. Except as set forth in Disclosure
Schedule 5.9 or in the Disclosure Package, to the knowledge of the Buyer, the
Buyer and the conduct of the business of the Buyer are in compliance with all
applicable Regulations or judgments, decisions or orders entered by any federal,
state, local, or foreign court relating to the Buyer or its assets, except where
the failure to comply could not reasonably be expected to have a Buyer Material
Adverse Effect. The Buyer has not received any written notice to the effect
that, or otherwise been advised that, it is not in compliance with any
Regulations, and the Buyer has no reason to anticipate that any currently
existing circumstances are likely to result in violations of any such
regulations which could, in any one case or in the aggregate, reasonably be
expected to have a Buyer Material Adverse Effect. To the knowledge of the Buyer,
the Buyer has all Permits, authorizations and approvals, all of which are
currently valid and in full force and effect, necessary to carry on its
business, except for those Permits that could not reasonably be expected to have
a Buyer Material Adverse Effect if not obtained.
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5.10 NO BROKERS. Buyer has not incurred by virtue of a contract or an
agreement to pay any finder's fee, brokerage commission or similar payment in
connection with the transactions contemplated hereby.
5.11 MATERIAL MISSTATEMENTS OR OMISSIONS. To the knowledge of Buyer, no
representations or warranties by the Buyer in this Agreement, nor any document,
exhibit, statement, certificate or schedule furnished or to be furnished to the
Stockholders pursuant hereto, or in connection with the transactions
contemplated hereby, contains or will contain any untrue statement of a material
fact, or omits or will omit to state any material fact necessary to make the
statements or facts contained therein not misleading.
5.12 DEFINITION OF KNOWLEDGE. Wherever in this Agreement a warranty or
representations is qualified by a word or phrase referring to Buyer's knowledge,
it shall mean the actual knowledge of the Chief Executive Officer, President
and/or Chief Financial Officer of Buyer after having made due inquiry of
managers of Buyer and its subsidiaries and affiliates who they reasonably
believe would be responsible for the relevant information.
ARTICLE 6
COVENANTS OF THE STOCKHOLDERS, XXXXXX, AND THE BUYER
The Stockholders, Xxxxxx and the Buyer covenant and agree with each other as
follows:
6.1 FURTHER ASSURANCES:
6.1.1 Upon the terms and subject to the conditions contained
herein, the parties agree, both before and after the Closing, (i) to use all
commercially reasonable efforts to take, or cause to be taken, all actions and
to do, or cause to be done, all things necessary, proper or advisable to
consummate and make effective the transactions contemplated by this Agreement,
including, without limitation, all actions necessary to satisfy the conditions
to Closing set forth in Articles 8 and 9 hereof, (ii) to execute any documents,
instruments or conveyances of any kind which may be reasonably necessary or
advisable to carry out any of the transactions contemplated hereunder, and (iii)
to cooperate with each other in connection with the foregoing. Without limiting
the foregoing, the parties agree to use their respective commercially reasonable
best efforts (i) to obtain all necessary waivers, consents and approvals from
other parties to the Contracts and Leases; PROVIDED, HOWEVER, that Xxxxxx shall
not be required to make any payments, commence litigation or agree to
modifications of the terms thereof in order to obtain any such waivers, consents
or approvals, (ii) to obtain all necessary Permits as are required to be
obtained under any Regulations, (iii) to defend all Actions challenging this
Agreement or the consummation of the transactions contemplated hereby, (iv) to
lift or rescind any injunction or restraining order or other court order
adversely affecting the ability of the parties to consummate the transactions
contemplated hereby, (v) to give all notices to, and make all registrations and
filings with third parties, including, without limitations, submissions of
information requested by governmental authorities and (vi) to fulfill all
conditions to this Agreement. The Buyer, Stockholders and Xxxxxx will promptly
commence all actions required under this Section 6.1.1.
6.1.2 The Stockholders and the Buyer agree to furnish or cause
to be furnished to each other, upon request, as promptly as practicable, such
information and assistance (including access to books and records) relating to
Xxxxxx as are reasonably necessary to respond to notices or audit requests, for
the preparation of any return with respect to Taxes or claims for refund, and
for the prosecution or defense of any claim, suit or proceeding relating to any
proposed adjustment with respect to Taxes.
6.2 CONDUCT OF BUSINESS. From the date hereof through the earlier to
occur of the Closing or the termination of this Agreement, the Stockholders
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shall, except as contemplated by this Agreement, or as consented to by the Buyer
in writing, cause Xxxxxx to be operated in the ordinary course and in accordance
with past practice and will not take any action inconsistent with this Agreement
or with the consummation of the Closing. Without limiting the generality of the
foregoing, Xxxxxx shall not, and, with respect to Xxxxxx, the Stockholders shall
not, except as specifically contemplated by this Agreement, as set forth in
Disclosure Schedule 6.2, or as consented to by the Buyer in writing:
(a) change or amend the Organizational Documents of Xxxxxx;
(b) enter into, extend, materially modify, terminate or renew
any Lease or any Contract, except modifications, extensions or renewals of
Contracts in the ordinary course of business;
(c) sell, assign, transfer, convey, lease, mortgage, pledge or
otherwise dispose of or encumber any of the Assets or any interests therein
except in the ordinary course of business and, without limiting the generality
of the foregoing, Xxxxxx will maintain, dispose of, and sell Inventory
consistent with past practices;
(d) incur any liability for indebtedness for borrowed money,
guarantee the obligations of others, indemnify or agree to indemnify others or,
except in the ordinary course of business, incur any other liability;
(e) (i) take any action with respect to the grant of any
bonus, severance or termination pay (otherwise than pursuant to policies or
agreements of Xxxxxx in effect on the date hereof that are described on the
Disclosure Schedules) or with respect to any increase of benefits payable under
its severance or termination pay policies or agreements in effect on the date
hereof or increase in any manner the compensation or fringe benefits of any
employee of Xxxxxx or pay, any benefit not required by any existing Employee
Plan or policy, other than as set forth in Disclosure Schedule 6.2;
(ii) make any change in the key management structure
of Xxxxxx, including, without limitation, the hiring of additional officers or
the termination of existing officers;
(iii) adopt, enter into or amend any Employee Plan,
agreement (including, without limitation, any collective bargaining or
employment agreement), trust, fund or other arrangement for the benefit or
welfare of any employee, except for any such amendment as may be required to
comply with applicable regulations; or
(iv) fail to maintain all Employee Plans in
accordance with applicable Regulations;
(f) acquire by merger or consolidation with, or merge or
consolidate with, or purchase substantially all of the assets of, or otherwise
acquire any material assets or business of, any corporation, partnership,
association or other business organization or division thereof or acquire any
Subsidiary;
(g) willingly allow or permit to be done any act by which any
of the Insurance Policies may be suspended, impaired or canceled;
(h) enter into, renew, modify or revise any agreement or
transaction relating to Xxxxxx with any of their Affiliates;
(i) fail to maintain the Assets in substantially their current
state of repair, excepting normal wear and tear, or fail to replace (consistent
with past practice) inoperable, worn-out or obsolete or destroyed Assets;
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(j) make any loans or advances relating to Xxxxxx to any
partnership, firm, individual, or corporation, except for expenses incurred in
the ordinary course of business consistent with past practice;
(k) fail to comply in all material respects with all
Regulations applicable to Xxxxxx and the Assets;
(l) change any of the accounting methods or practices of
Xxxxxx as historically applied or make any new elections or change any existing
elections with respect to Taxes;
(m) intentionally do any other act which would cause any
representation or warranty of Xxxxxx or the Stockholders in this Agreement to be
or become untrue, or any covenant in this Agreement to be breached, in any
material respect;
(n) fail to use reasonable efforts consistent with past
business practice to (i) maintain Xxxxxx so that the services of their officers,
employees, consultants and agents will remain available to it on and after the
Closing Date, (ii) maintain existing relationships with suppliers, customers and
others having business dealings with Xxxxxx and (iii) otherwise preserve the
goodwill of the business of Xxxxxx so that such relationships and goodwill will
be preserved on and after the Closing Date;
(o) enter into any agreement, or otherwise become obligated,
to do any action prohibited hereunder;
(p) except as set forth in Disclosure Schedule 6.2, declare,
set aside for payment, or pay any dividend or distribution in respect of any
capital stock of Xxxxxx; redeem, purchase or otherwise acquire any of Xxxxxx'
equity securities; pay any bonus, fee or other payment; or otherwise transfer
any of the Assets to or on behalf of any Stockholder or any Affiliate of Xxxxxx,
including, without limitation, any payment of principal of or interest on any
debt owed to any of the foregoing or any payment of a bonus, fee or other
payment to any of the foregoing as an employee of Xxxxxx; or
(q) fail to comply with all applicable filing, payment,
withholding, collection and record retention obligations under all applicable
federal, state, local or foreign Tax laws.
6.3 RECORDS. The parties shall have prepared and made available (or, in
the case of a portion of a period ending on the Closing Date, will prepare and
make available before the Closing) to the other parties all books and working
papers that clearly demonstrate the income and activities of the parties for any
period or any portion of a period ending on or prior to the Closing Date.
6.4 ACCESS OF THE BUYER. Xxxxxx shall allow the Buyer, its counsel,
accountants, and other representatives, at Buyer's sole cost and expense, during
regular business hours to make such inspection of the Assets and to inspect and
make copies of Contracts, Books and Records or other information requested by
the Buyer and related to the operation of the business of Xxxxxx, including
historical financial information concerning the business of Xxxxxx. Xxxxxx shall
furnish to the Buyer at the their sole cost and expense, promptly upon request
(i) all such additional documents and information with respect to the affairs of
Xxxxxx relating to their business or (ii) access to Personnel and to Xxxxxx
accountants and counsel as the Buyer or its counsel or accountants may from time
to time reasonably request and shall instruct such Personnel, accountants and
counsel to cooperate with the Buyer, and to provide such information as the
Buyer and such representatives may request, at Buyer's sole cost and expense, in
all cases only to the extent the foregoing relate to the subject matter of this
Agreement. Buyer shall notify the Stockholders if it obtains knowledge of a
breach of any of Xxxxxx or the Stockholders' representations, warranties and
agreements hereunder during such investigation and Buyer shall provide a
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reasonable period of time for Xxxxxx and the Stockholders if they choose in
their sole discretion, to cure such breach(es), if any, prior to the Closing.
6.5 FINANCIAL STATEMENTS. Xxxxxx shall provide the Buyer with an
unaudited balance sheet and the related statements of income, stockholders'
equity and cash flows for each calendar month between the date of this Agreement
and the Closing Date within 15 days after the end of each month. Such financial
statements shall (i) be in accordance with the books and records of each company
consistently applied throughout the periods indicated and (ii) except as
disclosed in the notes therein and except for normal year-end accruals not
contained therein, present fairly, as of the respective dates thereof or the
periods covered thereby, as applicable, the financial position, stockholders'
equity, cash flows and results of operations of Xxxxxx.
6.6 NOTIFICATION OF CERTAIN MATTERS. Between the date of this Agreement
and the Closing, the parties shall give prompt notice to the other parties of
(i) the occurrence, or failure to occur, of any event which occurrence or
failure would be likely to cause any representation or warranty contained in
this Agreement to be untrue or inaccurate in any material respect any time from
the date hereof to the Closing Date and (ii) any material failure of the parties
or any Affiliate, officer, director, employee, agent or stockholder of the
parties to comply with or satisfy any covenant, condition or agreement to be
complied with or satisfied by it hereunder; PROVIDED, HOWEVER, that such
disclosure shall not be deemed to cure any breach of a representation, warranty,
covenant or agreement or to satisfy any condition. During the same period, the
Stockholders shall promptly notify the Buyer of the occurrence of any breach by
the Stockholders or Xxxxxx of any covenant in this Article 7 or of the
occurrence of any event that may make the satisfaction of the conditions in
Article 8 impossible or unlikely, and Buyer shall promptly notify the
Stockholders of the occurrence of any such breach or event that comes to their
attention. Should any such fact or condition require any change in any
Disclosure Schedule if the Disclosure Schedule were dated the date of the
occurrence or discovery of any such fact or condition, the Stockholders will
promptly deliver to the Buyer a supplement to the Disclosure Schedule specifying
such change and such delivery shall be deemed to cure any breach of a
representation, warranty, covenant or agreement or to satisfy any condition;
provided, however, that Buyer shall not be required to Close if any such
supplement to the Disclosure Schedules constitutes a Company Material Adverse
Effect.
6.7 NO MERGERS, CONSOLIDATIONS, SALE OF STOCK, ETC. Prior to the
earlier of the Closing or the termination of this Agreement, neither Xxxxxx or
the Stockholders will, directly or indirectly, solicit any inquiries or
proposals or enter into or continue any discussions, negotiations or agreements
relating to the sale or exchange of the Xxxxxx capital stock or the merger of
Xxxxxx, or any direct or indirect disposition of a significant amount of the
Assets or the business of Xxxxxx, any person other than the Buyer or its
affiliates, or provide any assistance or any information to or otherwise
cooperate with any person in connection with any such inquiry, proposal or
transaction. In the event that Xxxxxx or any of the Stockholders, or any of
their respective Affiliates, receives an unsolicited offer for such a
transaction or obtains information that such an offer is likely to be made, the
Stockholders will provide the Buyer with notice thereof as soon as practical
after receipt, including the identity of the prospective purchaser or soliciting
party.
6.8 PAYMENT OF INDEBTEDNESS BY AFFILIATES. Each Stockholder will cause
all indebtedness owed to Xxxxxx by such Stockholder or any other Affiliate of
such Stockholder to be paid in full on or prior to Closing.
6.9 APPROVAL OF STOCKHOLDERS. At Closing, Xxxxxx and Stockholders shall
deliver a Joint Written Consent of the Board of Directors of Xxxxxx and the
Stockholders approving and adopting the Agreement and all other actions
contemplated by this Agreement which require approval and adoption by such
shareholders and/or Board of Directors.
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ARTICLE 7
CONDITIONS TO THE STOCKHOLDERS' OBLIGATIONS
The obligations of the Stockholders to consummate the transactions
provided for hereby are subject to the satisfaction, on or prior to the Closing
Date, of each of the following conditions, any of which may be waived by the
Stockholders in accordance with Section 10.6 hereof:
7.1 REPRESENTATIONS, WARRANTIES AND COVENANTS. All representations and
warranties of the Buyer contained in this Agreement shall be true and correct in
all material respects (except with respect to representations and warranties
which are qualified as to materiality or Material Adverse Effect, which
representations and warranties shall be true and correct) as of the date of this
Agreement and as of the Closing Date as though made on the Closing Date, and the
Buyer shall have performed all agreements and covenants required hereby to be
performed by it prior to or at the Closing Date.
7.2 NO GOVERNMENTAL PROCEEDINGS OR LITIGATION. No action by any
governmental authority or other person shall have been instituted or threatened
for the purpose of enjoining or preventing the transactions contemplated by this
Agreement, that (i) questions the validity or legality of the transactions
contemplated hereby, (ii) could reasonably be expected to have a Buyer Material
Adverse Effect, or (iii) seeks to enjoin consummation of the transactions
contemplated hereby or could reasonably be expected to cause any of the
transactions contemplated by this Agreement to be rescinded following
consummation.
7.3 DUE DILIGENCE. Xxxxxx and the Stockholders shall be reasonably
satisfied, with the results of their due diligence examination of the Buyer.
7.4 NO INJUNCTION. No injunction or restraining order shall be in
effect prohibiting the transactions contemplated hereby.
7.5 CERTIFICATES. The Buyer will furnish the Stockholders with such
certificates of its officers and others to evidence compliance with the
conditions set forth in this Article 7 as may be reasonably requested by the
Stockholders.
7.6 CORPORATE DOCUMENTS. The Stockholders shall have received from the
Buyer resolutions adopted by the board of directors of the Buyer approving this
Agreement and the transactions contemplated hereby, certified by an officer of
CKHI.
7.7 EMPLOYMENT AGREEMENT. At the Closing, Xxxxxx shall have entered
into Employment Agreements with Xxxxxxx Xxxxxxxxxx and Xxxxx X. Xxxxxxxx in the
forms attached hereto as Composite Exhibit E.
7.8 ESCROW AGREEMENT. CKHI shall have entered into and delivered to the
Stockholders the Escrow Agreement in the form of Exhibit A attached hereto.
7.9 PLEDGE AGREEMENT. CKHI shall have entered into and delivered to the
Stockholders the Pledge Agreement in the form of Exhibit D attached hereto.
7.10 REGISTRATION RIGHTS AGREEMENT. CKHI shall have entered into and
delivered to the Stockholders the Registration Rights Agreement in the form of
Exhibit C attached hereto.
7.11 INITIAL CONSIDERATION. CKHI shall have paid to the Stockholders
the Initial Cash and deposited with the Escrow Agent the Escrowed Stock.
7.12 CLOSING DELIVERIES. Xxxxxx and the Stockholders shall have
received at or prior to the Closing all documents set forth in this Article 7
and such other documents, instruments, or certificates of Buyer that they may
reasonably request.
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7.13 MUTUAL GENERAL RELEASE. Xxxxxx shall have executed a Mutual
General Release in favor of the Stockholders in the form as set forth in Exhibit
F attached hereto.
ARTICLE 8
CONDITIONS TO THE BUYER'S OBLIGATION
The obligations of the Buyer to consummate the transactions provided
for hereby are subject to the satisfaction, on or prior to the Closing Date, of
each of the following conditions, each of which may be waived by the Buyer in
accordance with Section 10.6 hereof:
8.1 REPRESENTATIONS, WARRANTIES AND COVENANTS. All representations and
warranties of each of Xxxxxx and the Stockholders contained in this Agreement
shall be true and correct in all material respects (except with respect to
representations and warranties which are qualified as to Company Material
Adverse Effect, which representations and warranties shall be true and correct)
as of the date of this Agreement and as of the Closing Date as though made on
the Closing Date, Xxxxxx and the Stockholders shall have performed all
agreements and covenants required hereby to be performed by any of them prior to
or at the Closing Date.
8.2 NO GOVERNMENTAL PROCEEDINGS OR LITIGATION. No Action by any
governmental authority or other person shall have been instituted or threatened
for the purpose of enjoining or preventing the transactions contemplated by this
Agreement, that (i) questions the validity or legality of the transactions
contemplated hereby, (ii) could reasonably be expected to have a Company
Material Adverse Effect, or (iii) seeks to enjoin consummation of the
transactions contemplated hereby or could reasonably be expected to cause any of
the transactions contemplated by this Agreement to be rescinded following
consummation.
8.3 DUE DILIGENCE AND AUDIT. Buyer shall be reasonably satisfied, with
the results of its due diligence examination of Xxxxxx and the audits of Xxxxxx
by its certified public accountants, all costs and expenses of which Buyer shall
pay for.
8.4 NO INJUNCTION. No injunction or restraining order shall be in
effect prohibiting the transactions contemplated hereby.
8.5 CERTIFICATES. The Stockholders will have furnished the Buyer with
such certificates of the officers of Xxxxxx and others to evidence compliance
with the conditions set forth in this Article 8 as may be reasonably requested
by the Buyer.
8.6 LIENS. If and as requested by Buyer, any liens specifically
designated in Disclosure Schedule 4.4 as needing to be terminated and released
shall have been terminated and released.
8.7 401(k) PLAN. Xxxxxx shall have taken all action necessary to
terminate the 401(k) Plan in compliance with applicable law and such
terminations shall have no adverse effect on Xxxxxx or the Buyer.
8.8 RESIGNATION OF OFFICERS AND DIRECTORS. Each officer and director of
Xxxxxx shall have resigned from such position.
8.9 MUTUAL GENERAL RELEASE. Each Stockholder shall have executed a
Mutual General Release in favor of the Acquisition Corp, Xxxxxx and CKHI in the
form as set forth in Exhibit F attached hereto.
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8.10 ESCROW AGREEMENT. The Stockholders shall have entered into and
delivered to the Buyer the Escrow Agreement in the form of Exhibit A attached
hereto.
8.11 EMPLOYMENT AGREEMENT. Messrs. Xxxxxxxxxx and Xxxxxxxx shall have
entered into and delivered to the Buyer the Employment Agreements in the form of
Exhibit E attached hereto.
8.12 CLOSING DELIVERIES. Buyer shall have received at or prior to the
Closing all documents set forth in this Article 8 and such other documents,
instruments, or certificates of Xxxxxx and the Stockholders that it may
reasonably request including, without limitation, that certain Conditional
Termination Agreement in the form attached hereto as Exhibit "G."
ARTICLE 9
ACTIONS BY THE STOCKHOLDERS AND THE BUYER
AFTER THE CLOSING
9.1 BOOKS AND RECORDS. The Stockholders and the Buyer agree that each
will cooperate with and make available to the other party, during normal
business hours, all Books and Records, information and Personnel (without
substantial disruption of employment) retained and remaining in existence after
the Closing Date that are related to the business of Xxxxxx and that are
necessary or useful in connection with any tax inquiry, audit, investigation or
dispute, any litigation or investigation or any other matter requiring any such
Books and Records, information or Personnel for any reasonable business purpose.
The party requesting any such Books and Records, information or Personnel shall
bear all of the out-of-pocket costs and expenses (including, without limitation,
attorneys' fees, but excluding reimbursement for salaries and employee benefits)
reasonably incurred in connection with providing such Books and Records,
information or Personnel.
9.2 SURVIVAL OF REPRESENTATIONS, ETC. All of the representations and
warranties made by each party in this Agreement or in any attachment, Exhibit,
Disclosure Schedule, certificate, document or list attached to this Agreement
shall survive the Closing for the period ending two (2) years after the Closing
(and claims based upon or arising out of such representations and warranties may
be asserted at any time before such date). Each party hereto shall be entitled
to rely upon the representations and warranties of the other party set forth in
this Agreement. The termination of the representations and warranties provided
herein shall not affect the rights of a party in respect of any Claim made by
such party in a writing received by the other party prior to the expiration of
the applicable survival period provided herein.
9.3 INDEMNIFICATION.
9.3.1 By the Stockholders.
(i) The Stockholders shall jointly and severally
(among the Xxxxxxxx Stockholders) and severally but not jointly (between the
Xxxxxxxx Stockholders and Xxxxxxx Xxxxxxxxxx) indemnify, save and hold harmless
the Buyer, its Affiliates and Subsidiaries, and its Representatives, from and
against any and all Damages incurred in connection with, arising out of,
resulting from or incident to:
(A) any material breach of any
representation or warranty or the inaccuracy of any representation, made by
Xxxxxx or any Stockholder in or pursuant to this Agreement;
(B) any material breach of any covenant or
agreement made by Xxxxxx or any Stockholder in or pursuant to this Agreement
which by its terms survives the Closing as provided herein;
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(C) the operations of Xxxxxx prior to and as
of the Closing Date;
(D) all Compliance representations disclosed
or required to be disclosed under Sections 4.30,
hereof;
(E) all claims, causes of action, choses in
action, rights of recovery of whatever kind or description against Xxxxxx and/or
its Stockholders arising out of goods sold or installed or services performed
prior to the Closing; and
(F) all Xxxxxx Taxes owed for periods prior
to and as of the Closing Date.
(ii) The Stockholders shall jointly and severally
indemnify, save and hold harmless the Buyer, their Affiliates, Subsidiaries, and
Representatives, on an after-tax basis, from and against any and all Xxxxxx
Taxes and any and all Damages related to Taxes of Xxxxxx with respect to any Tax
year or portion thereof ending on or before the Closing Date (and for any Tax
year beginning before and ending after the Closing Date, for the portion of such
year ending on the Closing Date).
(iii) All payments to be made pursuant to this
Section 9.3.1 shall be paid in cash, and/or CKHI Stock as valued in Section
9.3.11 below, promptly by the Stockholders after the resolution of any dispute
between the Stockholders and the indemnified parties regarding the extent and
amount of such indemnification.
9.3.2 BY THE BUYER. The Buyer shall indemnify, save and hold
harmless the Stockholders and their Representatives from and against any and all
Damages incurred in connection with, arising out of, resulting from, or incident
to (i) any material breach of any representation or warranty or the inaccuracy
of any representation, made by the Buyer in or pursuant to this Agreement, (ii)
any material breach of any covenant or agreement made by the Buyer in or
pursuant to this Agreement which by its terms survives the Closing and (iii) the
operations of Xxxxxx after the Closing Date other than those damages resulting
from (x) a breach of this Agreement or any agreement entered into between the
parties as contemplated by this transaction, (y) any Stockholder acting outside
the scope of their duties and/or responsibilities as contemplated in or by this
Agreement or any agreement entered into between the parties in connection with
this transaction, or (z) willful misconduct of any of the Stockholders. The
Buyer shall indemnify, save and hold harmless the Stockholders and their
Representatives, on an after-tax basis, from and against any and all Taxes and
any and all Damages related to Taxes of Xxxxxx with respect to any Tax year or
portion thereof beginning after the Closing Date (and for any Tax year beginning
before and ending after the Closing Date, for the portion of such year ending
after the Closing Date). All payments to be made pursuant to this Section 9.3.2
shall be paid in cash promptly by the Buyer after the resolution of any disputes
between the Buyer and the indemnified parties regarding the extent and amount of
such indemnification.
9.3.3 LITIGATION. All unresolved disputes between the parties
will be settled by a court of competent jurisdiction, without jury trial, in
accordance with Section 10.5 hereof.
9.3.4 DEFENSE OF CLAIMS. If a claim for Damages (an "Indemnity
Claim") is to be made by a party entitled to indemnification hereunder against
the indemnifying party, the party claiming such indemnification shall, subject
to Section 9.3 hereof, give written notice (a "Claim Notice") to the
indemnifying party as soon as practicable after the party entitled to
indemnification becomes aware of any fact, condition or event which may give
rise to Damages for which indemnification may be sought under this Section 9.3.
If any lawsuit or enforcement action is filed against any party entitled to the
benefit of indemnity hereunder, written notice thereof shall be given to the
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indemnifying party as promptly as practicable (and in any event within 15
calendar days after the service of the citation or summons). The failure of any
indemnified party to give timely notice hereunder shall not affect rights to
indemnification hereunder, except to the extent that the indemnifying party
demonstrates actual prejudice caused by such failure. After such notice, the
indemnified party against which such claim has been asserted will (upon
delivering notice to such effect to the indemnifying party) have the right to
undertake, at the indemnifying party's cost and expense, the defense, compromise
or settlement of such claim on behalf of and for the account and risk of the
indemnifying party, provided that the indemnifying party shall have the
opportunity to advise and comment on the Indemnity Claim. The indemnified party
will keep the indemnifying party reasonably informed of the progress of any such
defense, compromise or settlement. The indemnifying party shall be liable for
any settlement of any action effected pursuant to and in accordance with this
Section 9.3 and for any final judgment (subject to any right of appeal), and the
indemnifying party agrees to indemnify and hold harmless an indemnified party
from and against any Damages by reason of such settlement or judgment.
The obligations and liabilities of the parties hereto with
respect to their respective indemnities pursuant to this Section 9.3 resulting
from any Claim shall be subject to the following additional terms and
conditions:
(i) The indemnifying party shall have the right to
undertake, by counsel or other representatives of its own choosing, the defense
or opposition to such Claim.
(ii) In the event that the indemnifying party shall
elect not to undertake such defense or opposition, or within ten (10) days after
notice of any such Claim from the indemnified party shall fail to defend or
oppose, the indemnified party (upon further written notice to the indemnifying
party) shall have the right to undertake the defense, opposition, compromise or
settlement of such Claim, by counsel or other representatives of its own
choosing, on behalf of and for the account and risk of the indemnifying party
(subject to the right of the indemnifying party to assume defense of or
opposition to such Claim at any time prior to settlement, compromise or final
determination thereof).
(iii) Anything in this Section 9.3.4 to the contrary
notwithstanding: (a) the indemnified party shall have the right, at its own cost
and expense, to participate in the defense, opposition, compromise or settlement
of the Claim; (b) the indemnifying party shall not, without the indemnified
party's written consent, settle or compromise any Claim or consent to entry of
any judgment which does not include as an unconditional term thereof the giving
by the claimant or the plaintiff to the indemnified party of a release from all
liability in respect of such Claim; and (c) in the event that the indemnifying
party undertakes defense of or opposition to any Claim, the indemnified party,
by counsel or other representative of its own choosing and at its sole cost and
expense, shall have the right to consult with the indemnifying party and its
counsel or other representatives concerning such Claim and the indemnifying
party and the indemnified party and their respective counsel or other
representatives shall cooperate in good faith with respect to such Claim.
9.3.5 LIABILITY. The provisions of this Section shall cover
all liabilities of whatever kind, nature or description relating, directly or
indirectly, to liability, litigation (to the extent not covered by insurance) or
claims against the Buyer, Xxxxxx or the Stockholders in connection with, arising
out of, or relating to services performed or products sold by Xxxxxx or their
agents or contractors prior to the Closing.
9.3.6 BROKERS AND FINDERS. Pursuant to the provisions of this
Section 9.3, each of the Buyer and the Stockholders shall indemnify, hold
harmless and defend the other party from the payment of any and all broker's and
finder's expenses, commissions, fees or other forms of compensation which may be
due or payable from or by the indemnifying party (and in the case of the
Stockholders, if due or payable from or by Xxxxxx), or may have been earned by
any third party acting on behalf of the indemnifying party in connection with
the negotiation and execution hereof and the consummation of the transactions
contemplated hereby.
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9.3.7 REPRESENTATIVES. No individual Representative of any
party shall be personally liable for any Damages under the provisions contained
in this Section 9.3. Nothing herein shall relieve either party of any liability
to make any payment expressly required to be made by such party pursuant to this
Agreement.
9.3.8 DAMAGES. As used in this Section 9.3, the term "Damages"
shall mean any and all costs, losses, (including, without limitation, diminution
in value), Taxes, liabilities, obligations, damages, including payments made
pursuant to this Article 9, lawsuits, deficiencies, claims, demands, and
expenses (whether or not arising out of third-party claims), including, without
limitation, interest, penalties, costs of mitigation, losses in connection with
any environmental law (including, without limitation, any clean-up or remedial
action), lost profits and other losses resulting from any shutdown or
curtailment of operations of the damaged entity, damages to the environment,
reasonable attorneys' fees, all amounts which would constitute Damages but for
payments received under any insurance policy the premium for which has been paid
by any Person that is an Affiliate of the other party, other than the damaged
entity, and all amounts paid in investigation, defense or settlement of any of
the foregoing. The term "Damages" as used in this Section 9.3 is not limited to
matters asserted by third parties against the Stockholders or the Buyer, but
includes Damages incurred or sustained by the Stockholders or the Buyer in the
absence of third-party claims.
9.3.9 MATERIALITY. The parties recognize that many of the
representations, warranties and covenants set forth in this Agreement are
qualified by the term "MATERIAL". For purposes of this Agreement, the parties
hereby agree that a "MATERIAL" event(s) has occurred if the impact of such
event(s) has resulted or is reasonably likely to result in costs, expenses
and/or damages for any event(s) singularly or in the aggregate in excess of
Fifty Thousand Dollars ($50,000.00).
9.3.10 PAYMENTS. The parties hereby agree that any payment
with respect to any indemnity required pursuant to this Section 9.3 may be
offset against any payments otherwise due by the indemnified party to the
indemnifying party.
9.3.11 LIMITATION. The parties agree that the indemnification
provisions set forth in this Article shall be limited to all Claims,
individually or in the aggregate, in excess of Fifty Thousand Dollars
($50,000.00) (the "Threshold"). Once a Claim(s) exceeds the Threshold, if a
party is entitled to indemnification under this Section 9.3, such party shall
recover all appropriate funds, as provided in this Section 9.3, only to the
extent that such indemnification amount exceeds the Threshold amount. Further,
the indemnitors shall not be liable for any liabilities resulting from Claims
that are covered by any insurance policy or other indemnity or contribution
agreement unless, and only to the extent that, the full limit of such insurance
policy, indemnity or contribution agreement has been exceeded. The party
entitled to indemnification shall have a duty to mitigate its damages.
Notwithstanding the foregoing, the maximum indemnity
obligation of any indemnifying party with respect to any indemnity required
pursuant to this Section 9.3 shall not exceed (i) the amount of the Acquisition
Consideration which has been paid to the Stockholders at the time such indemnity
is required to be paid and (ii) any Acquisition Consideration otherwise required
to be paid subsequent to such time. For purposes of this section only, a share
of CKHI Stock shall be valued as follows: (1) if the principal market for such
stock is a national securities exchange, the 120 day trailing average of the
closing prices per share of such stock as reported by such exchange or on a
composite tape reflecting transactions on such exchange, (2) if the principal
market for such stock is not a national securities exchange and such stock is
quoted on The Nasdaq Stock Market ("NASDAQ"), and (i) if actual closing price
information is available with respect to such stock, the 120 day trailing
average of the closing prices per share of such stock on Nasdaq, or (ii) if such
information is not available, the 120 day trailing average of the bid prices per
share of such stock on Nasdaq, or (3) if the principal market for such stock is
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not a national securities exchange and such stock is not quoted on Nasdaq, the
120 day trailing average of the closing prices per share of such stock as
reported on the OTC Bulletin Board Service or by National Quotation Bureau,
Incorporated or a comparable service; PROVIDED, HOWEVER, that if clauses (1),
(2) and (3) of this Section are all inapplicable, or if no trades have been made
or no quotes are available for such day, the fair market value of such stock
shall be determined as follows: The Stockholders and CKHI shall each appoint an
appraiser and the two appraisers appointed shall have fifteen (15) days to
appoint a third appraiser. Each of such appraisers shall be engaged in the
business of providing appraisals of stock similar to the CKHI Stock. The
Stockholders and CKHI shall pay the fee of the appraisers it appoints plus
one-half of the third appraiser's fee. Within thirty (30) days following the
appointment of the third appraiser, the two originally selected appraisers shall
each submit a sealed appraisal to the Stockholders and CKHI. If after the
appraisals have been submitted and the Stockholders and CKHI are unable to agree
upon an acceptable fair market value within fifteen (15) days, the third
appraiser shall select one of the two previously submitted appraisals as the
Fair Market Value of a share of CKHI Stock. The selection by the third appraiser
shall be final and binding upon the parties. Any delay caused by the appraisal
procedures shall cause the closings otherwise contemplated herein to accommodate
such delay.
9.4 CERTAIN TAX MATTERS. The following provisions shall govern the
allocation of responsibility as between the Buyer and Xxxxxx on the one hand and
the Stockholders on the other hand for certain tax matters following the
Closing:
(a) For any Tax years ending on or before the Closing Date,
the Stockholders shall prepare or cause to be prepared all Tax Returns for
Xxxxxx which are required to (or pursuant to an extension may) be filed after
the Closing Date. Subject to the requirements of applicable law, each such Tax
Return shall be prepared in a manner consistent with the Jamita's past
practices. Each income Tax Return of Xxxxxx shall be submitted to the Buyer at
least 30 days prior to the due date (including any extension thereof) for filing
such Tax Returns, and the Stockholders shall permit the Buyer to make comments
on each such Tax Return prior to the filing thereof. The Stockholders shall file
timely or cause to be filed timely such Tax Returns. The Buyer agrees that it
will consent to an election of Xxxxxx to close its books for federal tax
purposes as of the Closing Date, in accordance with Section 1362(e)(3) of the
Internal Revenue Code of 1986, as amended, and that the "S short year" of Xxxxxx
(as such term is defined in Code Section 1362(e)) ending on the Closing Date
will be considered a Tax year ending on the Closing Date for purposes of this
Section 9.4. Xxxxxx and the Stockholders agree that they will consent to an
election pursuant to Section 338(h)(10) of the Code by filing Form 8023 such
that Xxxxxx shall be treated as having sold all of its assets at the Effective
Date at fair market value in a single transaction and shall be treated as a new
corporation which purchased all of such assets as of the beginning of the day
after the Effective Date.
(b) The Buyer, Xxxxxx, and the Stockholders shall cooperate
fully, as and to the extent reasonably requested by the other party, in
connection with the filing of Tax Returns pursuant to this Section 9.4 and any
audit, litigation or other proceeding with respect to Taxes. Such cooperation
shall include provision of appropriate powers of attorney or similar
authorizations, the retention and (upon the other party's request) the provision
of records and information which are reasonably relevant to any such audit,
litigation or other proceeding and making employees available on a mutually
convenient basis to provide additional information and explanation of any
material provided hereunder. CKHI shall retain all books and records with
respect to Tax matters pertinent to Xxxxxx relating to any tax periods and shall
abide by all record retention agreements entered into with any taxing authority,
and shall give the Stockholders reasonable written notice prior to transferring,
destroying or discarding any such book and records prior to the expiration of
the applicable statute of limitations for that tax period, and if the
Stockholders so request in the event of any proposed destruction or discarding
of the books and records, CKHI shall allow the Stockholders to take possession
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of such books and records. Buyer and the Stockholders shall, upon request, use
their best efforts to obtain any certificate or other document from any
governmental authority or any other Person as may be necessary to mitigate,
reduce or eliminate any Tax that could be imposed (including, but not limited
to, with respect to the transactions contemplated hereby). Each party shall pay
its own expenses incurred in complying with this Section 9.4(b).
(c) The Stockholders shall, at their expense, be entitled to
control any Tax audit of Xxxxxx to the extent such audit affects or may affect
the amount or character of income, gain or loss includible by the Stockholders
for periods or portions thereof ending on or before the Closing Date. The Buyer
shall control all Tax audit issues of Xxxxxx that the Stockholders are not
entitled, or does not elect, to control.
ARTICLE 10
MISCELLANEOUS
10.1 TERMINATION.
10.1.1 TERMINATION. This Agreement may be terminated at any
time prior to Closing:
(i) By mutual written consent of the Buyer and the
Stockholders;
(ii) By the Buyer or the Stockholders if the Closing
shall not have occurred on or before August 15, 2000;
(iii) By the Buyer if there is a breach of any
representation or warranty set forth in Article 4 hereof or any covenant or
agreement to be complied with or performed by Xxxxxx or the Stockholders
pursuant to the terms of this Agreement which breach constitutes a Company
Material Adverse Effect, or the failure of a condition set forth in Article 8 to
be satisfied (and such condition is not waived in writing by the Buyer) on or
prior to the Closing Date; PROVIDED, HOWEVER, that the Buyer may not terminate
this Agreement prior to the Closing if the Stockholders have not had an adequate
opportunity to cure such failure or if the Buyer is in breach or default of any
provision of this Agreement at that time; or
(iv) By the Stockholders if there is a breach of any
representation or warranty set forth in Article 5 hereof or of any covenant or
agreement to be complied with or performed by the Buyer pursuant to the terms of
this Agreement which breach constitutes a Buyer Material Adverse Effect or the
failure of a condition set forth in Article 7 to be satisfied (and such
condition is not waived in writing by the Stockholders) on or prior to the
Closing Date, PROVIDED, HOWEVER, that the Stockholders may not terminate this
Agreement prior to the Closing Date if the Buyer has not had an adequate
opportunity to cure such failure or if the Stockholders are in breach or default
of any provision of this Agreement at that time.
10.1.2 IN EVENT OF TERMINATION. In the event of termination of
this Agreement:
(i) each party will redeliver all documents, work
papers and other material of any other party relating to the transactions
contemplated hereby, whether so obtained before or after the execution hereof,
to the party furnishing the same;
(ii) no confidential information received by any
party with respect to the business of any other party or its Affiliates shall be
disclosed to any third party, unless required by law; and
(iii) In the event that this Agreement shall be
terminated pursuant to Section 10.1.1(i) hereof, all obligations of the parties
hereto under this Agreement shall terminate and there shall be no liability of
any party hereto to any other party and each party hereto shall bear its own
expenses incurred in connection with the negotiation, preparation, execution and
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performance of this Agreement. The termination of this Agreement except pursuant
to Section 10.1.1(i) shall not affect the right of any party to bring an action
for breach of this Agreement.
10.2 ASSIGNMENT. Neither this Agreement nor any of the rights or
obligations hereunder may be assigned by any party without the prior written
consent of the other parties; except that the Buyer may, without such consent,
assign all of such rights to any lender as collateral security and assign all
such rights and obligations to a wholly-owned subsidiary (or a partnership
controlled by the Buyer) or subsidiaries of the Buyer or to a successor in
interest to the Buyer which shall assume all obligations and liabilities of the
Buyer under this Agreement provided that Buyer shall also remain responsible for
all obligations and liabilities under this Agreement unless the parties
otherwise agree in writing. Subject to the foregoing, this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, and no other person shall have any right,
benefit or obligation under this Agreement.
10.3 NOTICES; TRANSFER OF FUNDS. All notices, requests, demands and
other communications which are required or may be given under this Agreement
shall be in writing and shall be deemed to have been duly given when received if
personally delivered; when transmitted if transmitted by telecopy, electronic or
digital transmission method; the day after it is sent, if sent for next day
delivery to a domestic address by recognized overnight delivery service; and
upon receipt, if sent by certified or registered mail, return receipt requested.
In each case notice shall be sent to:
IF TO THE BUYER: Compass Knowledge Holdings, Inc.
0000 Xxx Xxxxxx
Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Xx., CEO
Fax:
If to the Xxxxxxxx
Stockholders: c/o Xxxxx X. Xxxxxxxx
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
With copies to: Xxxxxxx Head & Xxxxxxx LLP
1900 Fifth Third Center
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
If to Xxxxxxx Xxxxxxxxxx: 0000 Xxxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
If to Xxxxxx: Xxxxxx, Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx
or to such other place and with such other copies as any party may
designate as to itself by written notice to the others.
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10.4 CHOICE OF LAW. This Agreement shall be construed, interpreted and
the rights of the parties determined in accordance with the internal laws of the
State of Florida, United States of America without reference to its choice of
law provisions, except with respect to matters of law concerning the internal
corporate affairs of any corporate entity which is a party to or the subject of
this Agreement, and as to those matters the law of the jurisdiction under which
the respective entity derives its powers shall govern.
10.5 SUBMISSION TO JURISDICTION. Subject to the provisions of Section
10.4 hereof, (i) if Xxxxxx or the Stockholders commence any legal proceedings
arising out of or relating to this Agreement or transactions contemplated
hereby, such party hereby submits to the exclusive jurisdiction of the United
States District Courts for the Middle District of Florida, Orlando Division and
of any Florida State court sitting in Orlando, Florida, for purposes of such
legal proceedings, and (ii) if Buyer commences any legal proceedings arising out
of or relating to this Agreement or the transactions contemplated hereby, Buyer
hereby submits to the exclusive jurisdiction of the United States District
Courts for the Southern District of Ohio and of any Ohio State court sitting in
Cincinnati, Ohio, for purposes of such legal proceedings. Each party to this
Agreement hereby irrevocably waives, to the fullest extent permitted by law, any
objections which it may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum.
10.6 ENTIRE AGREEMENT, AMENDMENTS AND WAIVERS. This Agreement, together
with all Exhibits and schedules hereto (including the Disclosure Schedules),
constitutes the entire agreement among the parties pertaining to the subject
matter hereof and supersedes all prior agreements, understandings, negotiations
and discussions, whether oral or written, of the parties. This Agreement may not
be amended except by an instrument in writing signed on behalf of each of the
parties hereto. No amendment, supplement, modification or waiver of this
Agreement shall be binding unless executed in writing by the party to be bound
thereby. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provision hereof (whether or not
similar), nor shall such waiver constitute a continuing waiver unless otherwise
expressly provided.
10.7 MULTIPLE COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which,
together, shall constitute one and the same instrument.
10.8 EXPENSES. Except as otherwise specified in this Agreement, the
Stockholders shall be responsible for all except $5,000 (which shall be promptly
paid by Buyer) of their and Jamita's legal, accounting, out-of-pocket and other
expenses incident to this Agreement and to any action taken by such party in
preparation for carrying this Agreement into effect. CKHI shall be responsible
for its legal, accounting, out-of-pocket and other expenses incident to this
Agreement and to any action taken by such party in preparation for carrying this
Agreement into effect.
10.9 INVALIDITY. In the event that any one or more of the immaterial
provisions contained in this Agreement or in any other instrument referred to
herein, shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, then to the maximum extent permitted by law, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement or any other such instrument.
10.10 TITLES; GENDER. The titles, captions or headings of the Articles
and Sections herein, and the use of a particular gender, are for convenience of
reference only and are not intended to be a part of or to affect the meaning or
interpretation of this Agreement.
10.11 PUBLICITY. The Buyer in consultation with and following notice to
the Stockholders, may issue or make an appropriate press release or public
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announcement after the execution and delivery of this Agreement. Except as
required by law, neither Xxxxxx nor any Stockholder may issue any press release
or make any public statement regarding the transactions contemplated hereby,
without the prior approval of the other parties.
10.12 CUMULATIVE REMEDIES. All rights and remedies of either party
hereto are cumulative of each other and of every other right or remedy such
party may otherwise have in equity or at law, and the exercise of one or more
rights or remedies shall not prejudice or impair the concurrent or subsequent
exercise of other rights or remedies.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed on their respective behalf, by their respective officers thereunto duly
authorized, all as of the day and year first above written.
"CKHI"
COMPASS KNOWLEDGE HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxx Xx.
------------------------------
"ACQUISITION CORP"
COMPASS ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Xxxxxx X. Xxxxxx, CEO
"STOCKHOLDERS"
/s/ Xxxxx X. Xxxxxxxx
---------------------------------
Xxxxx X. Xxxxxxxx
/s/ Xxxxxxx Xxxxxxxxxx
---------------------------------
Xxxxxxx Xxxxxxxxxx
/s/ Xxxxx Xxxxxxxx
---------------------------------
Xxxxx Xxxxxxxx
/s/ Xxxxx Xxxxxxxx
---------------------------------
Xxxxx Xxxxxxxx
/s/ Xxxx Xxxxxxxx
---------------------------------
Xxxx Xxxxxxxx
/s/ Xxxx Xxxxxxxx
---------------------------------
Xxxx Xxxxxxxx
/s/ Xxxxxxxxx Xxxxxxxx
---------------------------------
Xxxxxxxxx Xxxxxxxx
/s/ Xxxxx X. Xxxxxxxx
---------------------------------
Xxxxx X. Xxxxxxxx as Custodian for
Xxxxxxx Xxxxxxxx under the Ohio
Transfers to Minors Act.
"XXXXXX"
XXXXXX, INC.
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------
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